In the News – New York State
Attorney General James: DOH Publicly Reported Data Undercounted COVID-19 Nursing Home Deaths & Many Nursing Homes Failed to Comply with Infection Control Policies
Attorney General Letitia James released a report this week on her office’s ongoing investigations into New York nursing homes’ responses to the COVID-19 pandemic, citing that Department of Health’s (DOH) published data may have undercounted deaths by as much as 50 percent and that nursing homes’ lack of compliance with infection control protocols put residents at increased risk of harm.
Since March, Attorney General James has been investigating nursing homes throughout New York state based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees. Based on these findings and subsequent investigation, Attorney General James is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.
“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,” said Attorney General James. “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. Nursing homes residents and workers deserve to live and work in safe environments, and I will continue to work hard to safeguard this basic right during this precarious time.” – Attorney General Letitia James
At the direction of Governor Andrew Cuomo, on April 23, OAG set up a hotline to receive complaints relating to communications by nursing homes with family members prohibited from in-person visits to nursing homes and formally initiated a large-scale investigation of nursing homes’ responses to the pandemic. OAG received more than 770 complaints on the hotline through August 3, and an additional 179 complaints through November 16.
Based on this information and subsequent investigation, OAG is currently conducting investigations into more than 20 nursing homes across the state. OAG found that:
- A larger number of nursing home residents died from COVID-19 than DOH data reflected;
- Lack of compliance with infection control protocols put residents at increased risk of harm;
- Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates;
- Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm;
- Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm;
- The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties instead of investing in higher levels of staffing and PPE;
- Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and
- Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.
Data Publication
According to the Attorney General, preliminary data obtained by OAG suggests that many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in DOH’s published total nursing home death data. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. The OAG found that nursing home resident deaths appear to be undercounted by DOH by approximately 50 percent
OAG asked 62 nursing homes (10 percent of the total facilities in New York) for information about on-site and in-hospital deaths from COVID-19. Using the data from these 62 nursing homes, OAG compared: (1) in-facility deaths reported to OAG compared to in-facility deaths publicized by DOH, and (2) total deaths reported to OAG compared to total deaths publicized by DOH.
In one example, a facility reported five confirmed and six presumed COVID-19 deaths at the facility as of August 3 to DOH. However, the facility reported to OAG a total of 27 COVID-19 deaths at the facility and 13 hospital deaths — a discrepancy of 29 deaths.
Infection Control
OAG received numerous complaints that some nursing homes failed to implement proper infection controls to prevent or mitigate the transmission of COVID-19 to vulnerable residents. Among those reports were allegations that several nursing homes around the state failed to plan and take proper infection control measures, including:
- Failing to properly isolate residents who tested positive for COVID-19;
- Failing to adequately screen or test employees for COVID-19;
- Demanding that sick employees continue to work and care for residents or face retaliation or termination;
- Failing to train employees in infection control protocols; and
- Failing to obtain, fit, and train caregivers with PPE.
Nursing Home with Low Staffing Ratings Had Higher Fatality Rates
There are 619 nursing homes in New York, and 401 of these facilities are for-profit, privately owned, and operated entities. Of the state’s 401 for-profit facilities, more than two-thirds — 280 nursing homes — have the lowest possible CMS Staffing ratings. The Staffing rating reflects the number of staffing hours in the nursing department of a facility relative to the number of residents. As of November 16, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in these 280 facilities.
Immunity Provisions
On March 23, Governor Cuomo created limited immunity provisions for health care providers relating to COVID-19. The Emergency Disaster Treatment Protection Act (EDTPA) provides immunity to health care professionals from potential liability arising from certain decisions, actions, and/or omissions related to the care of individuals during the COVID-19 pandemic.
According to the Attorney General, while it is reasonable to provide some protections for health care workers making impossible health care decisions in good faith during an unprecedented public health crisis, it would not be appropriate or just for nursing homes owners to interpret this action as providing blanket immunity for causing harm to residents.
In order to ensure no one can evade potential accountability, Attorney General James recommends eliminating these newly enacted immunity provisions.
Attorney General James encourages anyone with information or concerns about nursing home conditions to file confidential complaints online or by calling 833-249-8499.
This report is the collective product of investigative work undertaken since March 2020 by the Medicaid Fraud Control Unit’s (MFCU) 275 attorneys, forensic auditors, police investigators, medical analysts, data scientists, electronic investigation team, legal assistants, and support staff in eight offices across New York. MFCU is led by Director Amy Held and Assistant Deputy Attorney General Paul J. Mahoney. MFCU is a part of the Division for Criminal Justice, which is led by Chief Deputy Attorney General for Criminal Justice José Maldonado and overseen by First Deputy Attorney General Jennifer Levy.
2021 Joint Legislative Hearing Schedule on the Executive Budget
| Tuesday, February 2 | 9:30 a.m. | Housing |
| 1:00 p.m. | Workforce | |
| Thursday, February 4 | 9:30 a.m. | Higher Education |
| Friday, February 5 | 9:30 a.m. | Mental Hygiene |
| Tuesday, February 9 | 9:30 a.m. | Human Services |
| Wednesday, February 10 | 9:30 a.m. | Public Protection |
| Thursday, February 11 | 9:30 a.m. | Local Government |
| Tuesday, February 23 | 9:30 a.m. | Economic Development |
| 1:00 p.m. | Taxes | |
| Thursday, February 25 | 9:30 a.m. | Health |
In the News – City
State of the City 2021: Mayor de Blasio Outlines Recovery Plan for All of Us
Mayor Bill de Blasio this week announced a recovery plan for all New Yorkers as part of his 2021 State of the City address and unveiled the City’s recovery website: RecoveryForAll.nyc.gov.
The plan prioritizes COVID-19 vaccinating to jumpstart the recovery, uses City government to fight inequality and build a fairer economy, focuses on helping New York children recover emotionally and academically from the impact of COVID, promotes community based solutions to public safety, and fights the climate crisis.
RECOVERY
Vaccinate to 5 million New Yorkers Through Mid-year to Jumpstart the Recovery: The Mayor’s plan sets a goal of vaccinating 5 million New Yorkers through June. With 412 vaccination sites, including 24/7 vaccination sites and community health clinics, the Mayor projects that New York City can meet this goal if it receives “enough supply and the freedom to vaccinate.” New York City will immediately recruit 2,000 new Vaccine for All Corps members. These new Vaccine for All Corps members will join over 3,900 current vaccination workers at NYC Department of Health sites.
Full City Government Workforce Return Begins in May: The Mayor proposes to begin to bring back the rest of the City workforce in May. According to the Mayor, the return of City workers across the five boroughs will be a signal to the world that the comeback is happening now, as New York City vaccinates millions of New Yorkers.
EQUALITY
Utilize Government to Bring Equality: The Mayor’s equality plan begins with making the City Taskforce on Racial Inclusion and Equity permanent and naming a Charter Revision Commission with a two-year mandate to identify and change areas of structural racism in New York City.
Tax the Wealthy and Redistribute Wealth: According to Mayor de Blasio, New York City will join grassroots advocates demanding that New York taxes the wealthy and invest those funds into working people and their neighborhoods. New York City will fight for new progressive income taxes that establish brackets with increased tax rates for high earners and the ultra-wealthy.
BUILD THE ECONOMY
Hiring in the Community: In addition to the City’s project labor agreement to require City construction projects to hire within the surrounding community, the City Community Hiring First plan will push state lawmakers to pass legislation that requires more contractors and businesses to hire low-income New Yorkers and New Yorkers from high poverty communities.
10,000 Workers in the City Cleanup Corps: The City Cleanup Corps will employ 10,000 New Yorkers for beautification across our city. NYC CCC workers will wipe away graffiti, power wash sidewalks, create community murals, tend to community gardens, beautify public spaces, and work with community organizations to clean their neighborhoods.
NYC: The Public Health Capital of the World: New York City will build on its success with the Pandemic Response Lab by co-locating a new NYC Pandemic Response Institute at the Alexandria Center for Life Science. In addition, New York will establish the Medgar Evers College Health Care Career Hub.
Revitalize Small Businesses: Mayor de Blasio’s Plan includes:
- NYC Small Business Recovery Tax Credit: The NYC Small Business Recovery Tax Credit will be a $50 million rental assistance program for up to 17,000 small businesses in the arts, entertainment, recreation, food services, and accommodation sectors. Businesses in these sectors with gross revenue below $1 million will be eligible for a tax credit equal to 6% of their calendar year 2021 rent, up to maximum credit of $10,000. The new tax credit program will require State legislation
- NYC Small Business Recovery Loans: New York City will provide low-interest loans of up to $100,000 to over 2,000 small businesses in the communities hit hardest by COVID-19.
Bridge the Digital Divide: The City will put new franchises in place this year to facilitate new low-cost internet options from new companies across all five boroughs. In addition, under terms of a new agreement with Verizon, 500,000 more households will have access to FIOS service by 2023.
End Street Homelessness: The city will expand the Journey Home Action Plan to End Long-Term Street Homelessness and will establish an additional 1,000 new Safe Haven beds in 2021, on top of the more than 1,000 additional beds opened in 2020.
EDUCATION
Behavioral Health: The 2021 Student Achievement plan includes a three-pronged approach to confront student trauma and the mental health crisis. Beginning in the communities hardest hit by COVID-19, the DOE will make social, emotional, and academic behavior screeners available for all students K-12, hire 150 additional social workers, and add a community school in each of these neighborhoods. This first phase will serve approximately 380,000 students across approximately 830 schools.
Drive Diversity in Schools: According to Mayor de Blasio, this year, “the City will take concrete steps forward to continue to desegregate our schools to truly reflect the diversity of our neighborhoods.” The Department of Education will support five additional districts in implementing District Diversity Plans to foster greater integration in their classrooms. Middle Schools screens have been postponed in 2021 and district priorities for high school admissions, and all other geographic priorities, will be eliminated in 2021. We will develop a new system for identifying and serving gifted and talented students and implement it later this year.
Training the Next Generation of Superintendents: Launching this spring, the Aspiring Superintendents Academy will be a “highly selective, rigorous 10-month Superintendent preparation program. The Academy will train tenured principals with a track record of driving student achievement and serving our diverse learners and communities.”
PUBLIC PROTECTION
Fight Back Against Shootings: Under Mayor de Blasio’s plan, New York City will:
- Launch the NYC Joint Force to End Gun Violence comprised of members of NYPD, Cure Violence groups, District Attorney offices, the Mayor’s Office of Criminal Justice, City agencies, and additional local community groups and law enforcement organizations;
- Re-energize the NYPD’s Ceasefire program launched by the NYPD, state and federal law enforcement agencies, clergy, community leaders, and social service providers in 2014; and
- Focus on The Top 100 which are the 100 blocks that have the highest numbers of shootings, which also have disproportionate numbers of 311 and 911 calls.
The David Dinkins Plan: Mayor de Blasio’s Dinkins Plan includes granting the CCRB new review powers such as: allowing CCRB to initiative their own investigations; guaranteeing timely access to body worn camera footage; granting CCRB full access to officers’ disciplinary and employment histories for substantiated cases; giving CCRB authority to investigate individual instances of “biased-based policing” misconduct; and consolidating the Commission to Combat Police Corruption (CCPC) and the NYPD Office of the Inspector General (OIG) under the CCRB.
Give Communities a Voice in Choosing Precinct Commanders: Beginning this year, communities will have a direct role in selecting NYPD precinct commanders. Precinct Councils will hold interviews of NYPD’s proposed candidates for precinct commanders and provide the NYPD with feedback on the candidates and, following the selection of a new Precinct Commander, will evaluate their general effectiveness.
ENVIRONMENT
Connect NYC to Clean Canadian Hydro Power: This year New York City will secure a deal to bring construction of a transmission line directly connecting NYC to Canadian hydropower and other renewable electricity sources.
Ban New Fossil Fuel Connections by 2030: Beginning this year, New York City will move forward to ban new fossil fuel connections in new construction by at least 2030. The City will establish intermediate goals in the short-term and ensure the ban does not negatively impact renters and low-income residents.
De-Carbonize NYC Pension Funds: New York City will increase investments in climate solutions to $50 billion by 2035 and move our funds to net zero greenhouse gas emissions by 2040.
Bridges for the People: On the Brooklyn Bridge, New York City will ban cars from the innermost lane of the Manhattan-bound side to make a two-way protected bike lane and turn the existing shared promenade space into a space for pedestrians. On the Queensboro Bridge, New York will begin construction this year to convert the north outer roadway into a two-way bike-only lane and convert the south outer roadway to a two-way pedestrian-only lane.
New Bike Boulevards in Every Borough: In 2021, New York City will begin construction on five new Bike Boulevards.
Make Open Streets Permanent: Starting this year the City will continue the Open Streets program of 2020 with many of the streets from the previous year. The Department of Transportation will also open applications for new streets.
Bills Passed by the Council
Introduction No. 1116-B, sponsored by Council Member Margaret Chin, would mandate significant reforms related to street vendor permitting throughout New York City, aiming to address problems with the current system through three key changes.
Introduction No. 1420-C, proposed by Minority Leader Steven Matteo, would require an agency designated by the Mayor to conduct a study on the frequency of anonymous complaints made to 311 since 2016 and whether such complaints were more likely to be unsubstantiated than other complaints. The agency would be required to submit a report discussing the findings of the study by December 1, 2021, which would include recommendations regarding the types of complaints that should be allowed to be made anonymously.
Introduction No. 1994-A, proposed by Council Member Alicka Ampry-Samuel, would require the New York City Campaign Finance Board (CFB) to take a number of concrete steps to familiarize voters with Ranked Choice Voting (RCV). Specific steps the bill would require the CFB to take are:
- Conduct a citywide media campaign.
- Distribute a postcard explaining ranked choice voting to each household in the City with at least one registered voter.
- Create and maintain information on its website regarding RCV.
- Collaborate with community-based organizations in all five boroughs on RCV education.
- Produce educational materials regarding RCV and distribute such materials to the 26 city agencies designated as “participating voter registration agencies” under the Charter.
- Train the employees of such agencies on how to incorporate RCV into their interactions with the public.
- Conduct targeted outreach to voters in council districts where special elections have been scheduled to take place prior to the citywide primary on June 22, 2021.
Introduction No. 1832-B, proposed by Council Member Fernando Cabrera, would require 311 to notify each agency when a service request has not been closed within the number of days specified by such agency’s service level agreement (SLA). When a customer makes a complaint to 311, the call often results in a service request for a city agency. SLAs are commitments that agencies make to respond to a particular type of service request within a certain time frame. This bill would take effect 1 year after becoming law.
Introduction 2166-B, proposed by Council Member Adrienne Adams (by request of the mayor), would extend the City’s authority to sell tax liens for one year and will implement changes.
Introduction No. 2161-A, proposed by Council Member I. Daneek Miller, would create a nine-member board, which would hold two public hearings on workplace safety protocol for the purpose of reviewing and issuing recommendations on workplace health and safety guidance issued during public health emergencies and, specifically, the current COVID-19 pandemic.
Introduction No. 2162-A, proposed by Council Member I. Daneek Miller, would require the Citywide Office of Occupational Safety and Health (COSH) to proactively monitor federal, state, and local occupational safety and health agencies for any guidance they might issue on matters related to workplace safety and public health. Within 24 hours of any new guidance being issued, COSH would be required to deliver the guidance electronically to each ASCH.
Introduction 2204-A, proposed by Council Member Darma V. Diaz, would establish a six-month extension for applicants to the City’s basement legalization pilot program (established by Local Law number 49 for the year 2019) to submit required construction documents to the New York City Department of Buildings (DOB). Applicants were originally required to submit the required construction documents by January 2, 2021.
Briefs
Speaker Heastie Announces Assembly Working Group on Transitioning NY Economy Toward COVID-19 Recovery
Speaker Carl Heastie this week announced the appointment of an Assembly internal working group to focus on transitioning New York State’s economy toward a COVID-19 recovery.
The working group will be led by Assembly Economic Development, Job Creation, Commerce and Industry Committee Chair Harry Bronson and Small Business Committee Chair Al Stirpe. It will continue the Assembly Majority’s efforts to assist workers and the business community in responding to and recovering from the COVID-19 pandemic at both the local and the state level.
In New York State, small businesses make up 98 percent of the state’s businesses and employ 54 percent of the state’s workforce. At the peak of the pandemic, almost two million New Yorkers lost their jobs.
The working group will also include the following committee chairs:
- Assemblymember Edward C. Braunstein, chair, Committee on Cities.
- Assemblymember Latoya Joyner, chair, Committee on Labor.
- Assemblymember Donna Lupardo, chair, Committee on Agriculture.
- Assemblymember John T. McDonald III, chair, Committee on Oversight, Analysis and Investigation.
- Assemblymember Steven Otis, chair, Committee on Science & Technology.
- Assemblymember Victor Pichardo, chair, Committee on Banks.
- Assemblymember Fred W. Thiele, Jr., chair, Committee on Local Governments.
Report Raises Possibility of NYC Casino Delay
A study commissioned by the State Gaming Commission raises the possibility of delaying the licensing of casinos in New York City to allow the existing upstate facilities more time to recover from the ongoing COVID-19 pandemic.
“In light of the unprecedented COVID-19 situation and the resulting economic fallout, the State of New York could opt to delay, for an undetermined period, the decision to authorize three commercial casinos in the Downstate region,” stated the report from Spectrum Gaming Group consultants. “…Such a decision would have both positive and negative implications and results.”
Under the State’s original casino laws, up to three casinos were to be licensed in 2023.
New York Approves App that will Deliver Lottery Tickets
The State Gaming Commission this week approved a plan allowing a Manhattan-based app developer to buy scratch-off tickets for customers and have them mailed or delivered to their homes.
Under the plan, Jackpocket, which operates a licensed service involving non-scratch off games such as Mega Millions, will be able to offer scratch tickets to subscribers. According to published reports, the plan will involve a subscription system in which players can buy bundles of tickets, such as 50 at a time.
Jackpocket currently offers non-scratch-off tickets which are purchased and held by Jackpocket. The company buys the ticket, scans it, and sends a photo to the buyer. Jackpocket uses a deposit system allowing players to put money into a Jackpocket account. The company charges a 9 percent fee on the deposits.
According to published reports, Jackpocket handled 7 percent of statewide sales for last Saturday’s Powerball game. Reports indicate that Jackpocket is the only such company to be licensed in New York.
Governor Proposes Commission to Examine Family Court Officials
Governor Andrew Cuomo’s Executive Budget includes a plan to convene a Blue Ribbon Commission to examine the role of the forensic evaluators, whose recommendations often determine which parent prevails in a child custody or visitation dispute.
“There are few limits on who may act as a forensic evaluator or how the evaluations should be done,” according to Executive Budget documents. “Moreover, families of color are often harmed by racial and poverty biases in the child welfare system.”
The Commission membership would include judges, court personnel, forensic evaluators, attorneys who represent parties in custody matters, attorneys who represent children, survivors of gender-based violence, domestic violence advocates, and others with knowledge and experience on the topic.
Currently, in downstate New York courts, forensic evaluators are required to be a psychologist, psychiatrist, or social worker. The courts maintain a list of qualified individuals and require six hours of training. In the rest of the state, there is no public list and no required training, according to published reports.
NYC Indoor Dining Can Reopen at 25% on Valentine’s Day
Marriage Receptions May Resume In Accordance with State Guidance on March 15th
Governor Andrew Cuomo today announced that assuming New York State’s COVID-19 infection rate stays on its current trajectory, indoor dining in New York City can reopen at 25 percent capacity on Valentine’s Day. The reopening will be subject to strict State guidance, which can be found here.
In addition, Governor Cuomo announced that marriage receptions will be able to resume in accordance with State guidance on March 15th. Events must be approved by the local health department. There will be a 50 percent capacity limit and no more than 150 people can attend the event. All patrons must be tested prior to the event.
Coming Up
New York State
Monday February 1st
Senate Standing Committee on Internet and Technology, Online Meeting, (https://www.nysenate.gov/ ), 10:30 a.m.
Senate Standing Committee on Judiciary, Online Meeting, (https://www.nysenate.gov/), 11:00 a.m.
Senate Standing Committee on Housing, Construction, and Community Development, Online Meeting, (https://www.nysenate.gov/), 11:30 a.m.
Senate Standing Committee on Investigations and Government Operations, Online Meeting, (https://www.nysenate.gov/), 12:00 p.m.
Senate Standing Committee on Veterans, Homeland Security, and Military Affairs, Online Meeting, (https://www.nysenate.gov/), 12:30 p.m.
Senate Standing Committee on Insurance, Online Meeting, (https://www.nysenate.gov/), 1:00 p.m.
Senate Standing Committee on Disabilities, Online Meeting, (https://www.nysenate.gov/), 1:30 p.m.
Senate Session, NYS Capitol Building, 3:00 p.m.
Assembly Session, NYS Capitol Building
Tuesday February 2nd
Senate Standing Committee on Budget and Revenue, NYS Capitol Building, 9:00 a.m.
Senate Joint Legislative Public Hearing on 2021 Executive Budget Proposal: Topic- Housing, Zoom, 9:30 a.m.
Senate Standing Committee on Education, Online Meeting, (https://www.nysenate.gov/), 10:00 a.m.
Senate Standing Committee on Environmental Conservation, Online Meeting, (https://www.nysenate.gov/), 10:30 a.m.
Senate Standing Committee on Higher Education, Online Meeting, (https://www.nysenate.gov/), 11:30 a.m.
Senate Standing Committee on Cities, NYS Capitol Building, 12:00 p.m.
Senate Standing Committee on Transportation, Online Meeting, (https://www.nysenate.gov/), 12:30 p.m.
Senate Standing Committee on Energy and Telecommunications, Online Meeting, (https://www.nysenate.gov/), 1:00 p.m.
Senate Joint Legislative Public Hearing on 2021 Executive Budget Proposal: Topic- Work force Development, Zoom, 1:00 p.m.
Senate Standing Committee on Children and Families, NYS Capitol Building, 1:30 p.m.
Senate Session, NYS Capitol Building, 3:00 p.m.
Assembly Session, NYS Capitol Building
Wednesday February 3rd
Senate Session, NYS Capitol Building, 11:00 a.m.
Assembly Session, NYS Capitol Building
Thursday February 4th
Senate Joint Legislative Public Hearing on 2021 Executive Budget Proposal: Topic- Higher Education Zoom, 9:30 a.m.
Friday February 5th
Senate Joint Legislative Public Hearing on 2021 Executive Budget Proposal: Topic- Mental Hygiene, Zoom, 9:30 a.m.
New York City
No events scheduled.
Download Newsletter