Why NY needs truly independent probe

Why NY needs truly independent probe

New York now has 5,574 deaths in nursing homes from the novel coronavirus. And that doesn’t count nursing-home residents who were moved from a nursing home to a hospital before dying, or nursing home staff who have died. You most likely know at least one of those who has died or lost a loved one.

Could this radiating tragedy have been mitigated?

The problems in our nursing homes aren’t new; the virus has just made them more visible — and more severe. We need to find out why so many have become sick and died, what we’ve done right and wrong and what we can do now and for the future.

For decades, most nursing homes have been seriously understaffed. The state Department of Health, which regulates nursing homes, doesn’t set minimum staffing levels and has fought to stop efforts in the Legislature to require them. The department’s nursing-home-inspection operation has long been understaffed. The department has for decades been disturbingly lax in enforcing health and safety rules in nursing homes.

New Yorkers want to believe we do a good job of protecting nursing-home residents. But year after year, when national organizations publish state-by-state data on nursing-home quality, the Empire State is down toward the bottom.

So no one should be surprised that COVID-19 is ravaging our nursing homes. Monitoring residents’ symptoms and keeping sick patients cared for and separated all require staff, a culture of diligently maintaining standards and effective Department of Health oversight.

The state’s Long-Term Care Ombudsman program, part of the state Office for the Aging, is supposed to help nursing-home residents and families deal with problems. While Gov. Cuomo’s order to ban nursing-home visits made sense, it had no exception for ombudsman staff — cutting them off from the people who now especially need their help.

New York has given nursing homes almost complete legal immunity, unless they are found guilty of intentional misconduct or gross negligence. An executive order from the governor first enshrined these rules this year, which were then broadened by language the governor inserted in the state budget legislation shortly before it was enacted. This will make it even harder for health and safety rules to be enforced.

Why does all this happen? Most nursing-home operators want to do a good job, and many do. But New York provides inadequate funding through Medicaid. About 80 percent of nursing-home residents are on Medicaid, because the cost of the care uses up their resources and health insurance rarely covers long-term care.

And too many nursing-home operators have a long history of bad behavior. The longstanding weakness of the state’s enforcement owe partly to industry lobbying and partly to the fact that nursing homes are usually not on the public’s agenda. “Out of sight, out of mind” — until the problems break into the headlines.

Cuomo has directed state Attorney General Letitia James and the Department of Health to probe the COVID-19 situation in nursing homes. When one nursing home reported 13 COVID-19 deaths and actually had 98, an investigation is certainly called for.

But that’s just scratching the surface.

We must have a broader, more intensive professional review of the longstanding problems: bad operators, short staffing, inadequate funding and poorly staffed and lax enforcement of resident-protection rules.

That review must recognize that a lot of the responsibility for these problems — going back decades — lies with the state itself, especially the Department of Health. The role of the state and the Department of Health can’t and mustn’t be overlooked by investigators.

But there is another looming problem. Namely, we don’t count on people to investigate themselves, including the Department of Health. The state attorney general is usually the Department of Health’s lawyer. James does great work, but it simply isn’t fair to ask her to investigate her own client.

The sensible solution is for the attorney general to appoint an outside counsel to run the review.

There are many lives at stake, now and well after COVID-19 becomes a terrible memory. The virus has worsened the problems in nursing homes. At the same time, the problems in our nursing homes make the virus more devastating. We need to learn and act now.

Richard N. Gottfried is a member of the New York state Assembly and chairs its Health Committee.

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