Cuomo administration directive led to nursing home deaths, report argues

Cuomo administration directive led to nursing home deaths, report argues


ALBANY – A controversial directive issued by Gov. Andrew M. Cuomo’s administration did cause COVID-19 deaths in nursing homes, although the directive’s issuance was understandable given the state’s difficult circumstances, a newly issued report concluded.

The analysis, released this week by the Long-Term Care Task Force of the New York State Bar Association, counters some of the findings of a July 2020 report issued by the state Department of Health.

In its report, DOH absolved itself of responsibility for nursing home deaths, blaming the spread instead on the unwitting infection of asymptomatic nursing home staff members, who then transmitted the disease to vulnerable elderly residents.

But the Bar Association report states the directive remained in effect weeks longer than necessary, and that the Cuomo administration did not provide adequate aid to nursing homes during the early part of the pandemic.

The nuanced Bar Association analysis, running 242 pages, both casts blame on the Cuomo administration and counters some criticism, citing numerous other factors to explain more than 13,600 reported deaths in New York nursing homes during the pandemic.

The New York Post, which first reported the findings of the Bar Association’s 16-member task force, also reported that last Saturday, the report was adopted by 93 percent the NYSBA’s House of Delegates in a vote consisting of about 200 members.

The Department of Health directive, issued March 25, 2020, stated that nursing homes, as long as they could properly care for a person, could not deny re-admission or admission solely on the basis of a confirmed or suspected diagnosis of COVID-19.

Many nursing homes took the directive to mean that they were required to accept COVID-positive patients coming from a strained hospital system. And critics would soon contend the policy led to rampant infection within highly vulnerable populations.

The directive also barred nursing homes from requiring a previously hospitalized person who was determined to be medically stable from being tested prior to admission.

The Bar Association report found that although a “determination of the number of additional nursing home deaths is beyond the capacity of the Task Force, there are credible reviews that suggest that the directive, for the approximately six weeks that it was in effect, did lead to some number of additional deaths.”

Specifically, the Bar Association pointed to the February findings of the Empire Center for Public Policy, a fiscally conservative Albany think tank, that found that COVID-positive admissions were responsible for nursing home deaths, ranging from “several hundred” to “possibly more than 1,000.” 

“The Department of Health issued a report in 2020 in which it argued unconvincingly that the admission of 6,326 COVID-positive residents during the period the Health directive was in effect had no impact,” wrote the Bar Association task force. “That cannot be the case, and has now been shown not to be the case.”

But the Bar Association added that the directive was not necessarily issued in error: In March 2020, the state believed that it was in need of thousands of additional hospital beds, with intensive care units filling up, as the virus hit New York first and hardest in the United States. The hospital system appeared overwhelmed and in danger of collapse, so “difficult decisions were being made.”

There were other factors cited in the report for nursing home deaths: an insufficient federal response to the pandemic, including its failure to marshal enough personal protective equipment, to gain information from China about the virus, or to make testing available.

“At the time, seeing nursing home beds as a hospital extender when hospital beds were not expected to be available was not an unreasonable decision,” the report found.

Yet what was unreasonable, the report found, was the Cuomo administration’s failure to recognize that nursing homes needed just as much help as general hospitals. Nursing homes were given little assistance securing personal protective equipment, and the report noted that during an April 2020 press conference, Cuomo “roundly criticized” suggestions that nursing homes should have been aided further.

The Bar Association also found the “absoluteness” of the directive unreasonable, noting that the language disallowing the denial of medically stable patients. The directive was “commonly read” by nursing homes to mean they had to accept COVID-positive patients, regardless of another regulation stating homes should only accept patients they could properly care for.

 “The directive came at a time when regulations were routinely being overridden,” the report noted.

The report stated that it was unreasonable for the Cuomo administration to leave the directive in place for weeks after it was necessary. Emergency hospital beds set up at the Javits Center in New York City were barely used, the report noted, and the USNS Comfort, which was to be used for similar purposes, set sail away from New York on April 23, 2020. (It had arrived in New York City on March 30). The Navy hospital ship’s beds also sat empty, the report noted.

Yet the Cuomo administration directive, meant to alleviate stained hospital capacity, remained in effect until May 10, 2020.

“The March 25th directive could have been rescinded on or about the date the Comfort set sail, if not sooner,” the report noted.

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