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Local elected leaders call for resignation of Health Commissioner Howard Zucker following AG report

Howard A. Zucker
Posted at 2:04 PM, Jan 28, 2021
and last updated 2021-01-28 17:54:15-05

NEW YORK (WKBW) — Following a report from New York Attorney General Letitia James on her office's ongoing investigations into nursing homes' response to COVID-19, local elected leaders are calling on New York State Health Commissioner Dr. Howard Zucker to resign.

The report, which can be found in full here, revealed the following according to AG James:

  • 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 (ultimately increasing their own profit) 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.

New York State Senators Rob Ortt and George Borello, both Republicans, have called for the resignation of Zucker due to the findings of the report. You can find statements by each elected leader below.

The report released today by the Attorney General is confirmation for the thousands of families who lost loved ones to COVID-19 in New York nursing homes. 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. By underreporting COVID deaths in nursing homes by as much as 50 percent, the Department of Health has betrayed the public trust. To repair that broken trust, I am calling on Health Commissioner Howard Zucker to resign.
-Senator Robert Ortt (R) 62nd NYS Senate District
The calls for truth and transparency from grieving families were finally answered today with the release of the Attorney General’s report on the undercounting of deaths of nursing home residents from COVID-19. After months of stonewalling, blame-casting and diversion by the Governor and Health Commissioner, we have confirmation that COVID deaths in nursing homes were undercounted by as much as 50 percent. While this news cannot undo the damage and precious lives that were lost through reckless decisions, including the deadly March 25, 2020 order to send COVID-positive patients into nursing homes, these revelations will help ensure better oversight and vigilance going forward. While I echo the call of Leader Ortt and my colleagues for the resignation of the Health Commissioner, this in no way absolves the Governor of any wrongdoing. Nothing in the Cuomo administration happens without his knowledge and consent. We, as a legislative body, need to hold him accountable for this horrific tragedy and the bad decisions that led up to it.
-Senator George Borello (R) 57th NYS Senate District

In response to report by the AG, Zucker released a statement which can be found below.

The New York State Office of the Attorney General report is clear that there was no undercount of the total death toll from this once-in-a-century pandemic. The OAG affirms that the total number of deaths in hospitals and nursing homes is full and accurate. New York State Department of Health has always publicly reported the number of fatalities within hospitals irrespective of the residence of the patient, and separately reported the number of fatalities within nursing home facilities and has been clear about the nature of that reporting. Indeed, the OAG acknowledges in a footnote on page 71 that DOH was always clear that the data on its website pertains to in-facility fatalities and does not include deaths outside of a facility. The word "undercount" implies there are more total fatalities than have been reported; this is factually wrong. In fact, the OAG report itself repudiates the suggestion that there was any "undercount" of the total death number.
- Health Commissioner Dr. Howard Zucker

Zucker says the AG's report is only referring to the count of people who were in nursing homes but transferred to hospitals and later died, and the AG suggests that all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals.

That does not in any way change the total count of deaths but is instead a question of allocating the number of deaths between hospitals and nursing homes. DOH has consistently made clear that our numbers are reported based on the place of death. DOH does not disagree that the number of people transferred from a nursing home to a hospital is an important data point, and is in the midst of auditing this data from nursing homes. As the OAG report states, reporting from nursing homes is inconsistent and often inaccurate.
- Health Commissioner Dr. Howard Zucker

Zucker continues on to say the initial findings of wrongdoing by certain nursing home operators is reprehensible and the reason why the state asked the AG to undertake the investigation in the first place.

The health commissioner says the report affirms:

  • The state's actions to mandate increased testing of patients and staff, help backfill staffing shortages and provide staff to facilitate testing contributed to a reduction in transmission rates within the facilities.
  • The state's March 25 memo was consistent with federal CMS and CDC guidance and was not a directive that nursing homes accept COVID patients from hospitals even if they couldn't care for them.
  • No evidence was found that any nursing home lacked the ability to care for patients admitted from hospitals.
  • No evidence was found that the March 25 memo resulted in additional fatalities in nursing homes.
DOH has consistently found numerous inaccuracies when examining unverified data, and as a result, months ago DOH began an audit of fatality numbers reported by nursing homes to ensure public release of these statistics were accurate. This audit found entries where a deceased individual was listed as dying both in a hospital and in a nursing home, duplicate entries, and entries where the individual had no name or listed a date of death in a facility before they had been admitted, and other issues that suggested inaccurate data inputs. Over the past months, DOH contacted numerous individual facilities to resolve these discrepancies.
- Health Commissioner Dr. Howard Zucker

Zucker says DOH will release the data when the audit has been completed, although it is still ongoing.

It is worth noting that there remain 13 states that report no information on nursing home fatalities and only nine states, including New York, report nursing home fatalities that are 'presumed' COVID and not confirmed COVID. Notwithstanding all of this, the confirmed number of New York State deaths remains unchanged 34,742, and New York's public COVID dashboard continues to clearly specify that "this data captures COVID-19 confirmed and COVID-19 presumed deaths within nursing homes and adult care facilities. This data does not reflect COVID-19 confirmed or COVID-19 presumed positive deaths that occurred outside of the facility."
- Health Commissioner Dr. Howard Zucker

The health commissioner says this is still an ongoing crisis and the state will continue to review and attempt to enact reforms to protect all New Yorkers.

Ultimately, the OAG's report demonstrates that the recurring problems in nursing homes and by facility operators resulted from a complete abdication by the Trump administration of its duty to manage this pandemic. With no uniform processes or reporting mechanisms, every state reported data in different ways. And data requests from federal CMS, HHS and CDC at various points in the pandemic muddied the reporting across the board. There is no satisfaction in pointing out inaccuracies; every death to this terrible disease is tragic, and New York was hit hardest and earliest of any state as a direct result of the federal government's negligence. There is still an ongoing crisis that is being actively managed and investigated and we will review the remainder of the recommendations as we continue to fight with every resource and asset to protect all New Yorkers from the scourge of COVID.

All of this confirms that many nursing home operators made grave mistakes and were not adequately prepared for this pandemic, and that reforms are needed, which is why we proposed radical reforms to oversight of nursing home facilities in this year's State Budget. We will do everything in our power to enact those reforms this year. This is still an ongoing crisis and we will continue deploying every resource possible to ensuring the health and safety of every single New Yorker
- Health Commissioner Dr. Howard Zucker

In response to Zucker's response, Ortt released the following statement.

If Health Commissioner Howard Zucker really wants to respond to the Attorney General’s nursing home report, I invite him to do so in front of the State Legislature that he’s been dodging for months.

Families deserve transparency. Now, they deserve his resignation.
- Senator Rob Ortt (R) 62nd NYS Senate District