A New York state report released this week found that Gov. Andrew Cuomo’s controversial executive order, which placed COVID-19 hospital patients into nursing homes, was not to blame for the state’s more than 6,000 nursing home deaths. But many, including Republican lawmakers, watchdog groups and medical professionals, still have questions about what impact the order had.
New York State Health Commissioner Dr. Howard Zucker said Monday that it was staff and visitors, not the state’s controversial hospital policy, that brought COVID-19 into nursing homes.
“The data shows that the nursing home residents got COVID from the staff and presumably also from those who visited them,” he said.
Zucker and the state Department of Health’s 33-page report tries to exonerate Gov. Andrew Cuomo’s maligned executive order. The March 25 order, in an effort to free up hospital beds, mandated that nursing homes could not turn away a hospital patient just because the patient had COVID-19, resulting in over 6,300 COVID-positive patients being discharged into 310 nursing homes.
The state report ruled this could not have been “the driver” of infection because the virus was already in nursing homes when the order was made March 25. The peak of staff reporting symptoms was March 16 and the peak of resident deaths was April 8, while the peak of COVID patients being brought into nursing homes wasn’t until April 14. Cuomo’s order was then nullified with another order on May 10.
But the state’s report, and its sweeping conclusions, haven’t stopped the criticism.
U.S. Rep. Tom Reed was “not surprised that Cuomo’s investigation of himself resulted in a conclusion that Cuomo did nothing wrong,” The Southern Tier Congressman is perhaps the loudest critic of the order, even saying before the House Ways and Means Committee last month that the order “directly led to the deaths of thousands of our state’s parents and grandparents.”
"Common sense tells you that this report is flawed,” Reed told WBFO on a media call this week. “When you send coronavirus-positive seniors into a nursing home, where the most susceptible population of people to the virus are located, and you do that under a mandate of government, you're going to put those senior citizens at risk. And it is clear to me that senior citizens, our parents and grandparents, died as a result of that order.”
Cuomo has called any criticisms of the order “political.” Reed, for example, is a Republican and has even been rumored to be running against Cuomo in 2022.
“It was pure politics and it was ugly politics,” Cuomo said during his briefing Monday. “And now the report has the facts and the facts tell the exact opposite story.”
But it’s not just Cuomo’s political adversaries who question the report.
Bill Hammond is a senior fellow for health policy at fiscal watchdog group the Empire Center. While he doesn’t necessarily agree with Reed that Cuomo’s order was the major culprit of nursing home deaths, he does feel the state’s report is deeply flawed.
“I started to see more and more signs that this was geared toward a preconceived conclusion and that it was overstating what the evidence meant and it was leaving out certain data,” Hammond said.
Hammond published an article Wednesday with several critiques of the report. This includes the fact the state is still only counting the approximately 6,400 nursing home residents who died of COVID-19 inside their nursing homes, while discounting the potentially thousands of others who died after being taken to a hospital. Hammond, using vacancy rates, estimates the state’s nursing home death toll is closer to 10,000.
And Hammond notes that the state report claims the order didn’t have a large impact, without specifying what impact the order did have. For example, the report mentions that 81% of the 310 nursing homes that took in a COVID patient already had COVID in their building, but doesn’t say what happened to the other 19% of nursing homes.
“(The report says), ‘The order relating to discharged hospital patients was not a significant factor.’ Well, what does ‘not a significant factor’ mean? Does it mean zero people were harmed as a result of it? Does it mean only a few hundred out of a few thousand?” Hammond said. “The report didn't follow that through, it didn't track down, ‘OK, well, we think it's responsible for X percent of deaths or something like that.’ It tried to pretend like it was just a non-factor.”
Medical professionals agree the report is lacking in details. Dr. Nancy Nielsen, senior associate dean for health policy at the University at Buffalo’s Jacobs School of Medicine, said peak statewide numbers don’t tell every nursing home’s story. She noted a Rensselaer County-run nursing home that refused Cuomo’s order, and hasn’t had a single COVID death.
“So if this were all staff-driven, if that were the ‘major driver,’ you'd wonder why there was a difference,” she said. “You could say, ‘OK, well, maybe the county facility had more protective equipment.’ Yeah, maybe, but probably not. You could say a lot of things. But I think there are other questions, too, to be asked.”
It may be impossible to know exactly how many residents died from the order. Another UB professor, Dr. Jared Aldstadt, a medical geographer, said tracking the chain of transmission of a disease like COVID-19 is extremely difficult.
“In some rare cases of infectious disease, you can go back and recreate and know the chain of transmission relatively precisely. Sometimes it's because the disease is very rare. Other times it might be because it's highly fatal or something like that so you're pretty confident that you know every case,” Aldstadt said, “but that is not the situation here with COVID. ... There's a lot of asymptomatic infections, there's a lot of mild infections, and those people could all be transmitting the disease as well.”
One group that doesn’t take issue with the state’s report is the nursing homes themselves.
“I think that the report was objective and really highlighted at the end of the day that the sole factor to blame for the impact of this virus on the residents of nursing homes and assisted living facilities should be laid squarely at the feet of the COVID-19 virus,” said Stephen Hanse, president and CEO of the New York State Health Facilities Association, which represents 400 nursing homes and assisted living facilities across the state.
He said the report also confirmed what he saw throughout the pandemic: a nursing home’s quality had little bearing on how many deaths it had. Nursing homes rated 5 stars by the federal government actually had higher mortality rates (12%) than one-star nursing homes (7%).
Hanse said the focus, instead of assigning blame, should be on making nursing homes the top priority during a potential second wave of the virus this fall, just as hospitals were the focus this past spring.
“I think one of the critical takeaways is that nursing homes and assisted living facilities need to receive top priority together on the healthcare continuum,” he said. “Top priority for resources, top priority for PPE, top priority for testing, and importantly, top priority for financial resources.”
It’s unclear how nursing home staff leadership feel about the report. 1199SEIU, the state’s largest health care workers union, did not return a request for comment. 1199SEIU President George Gresham released a statement the day the report was released, but did not specifically mention the report.
“Nursing home caregivers did everything they could to support the residents they know and love through this terrible pandemic. They did so at great physical and emotional cost, in many cases without adequate personal protective equipment and while being denied needed paid sick time,” Gresham said. “The 60,000 1199SEIU members who work in New York nursing homes have been raising their voices since the beginning of this pandemic to demand that both residents and workers be protected and respected. They will continue to do so.”
Many, like Reed, are calling for an independent investigation into New York’s handling of nursing homes. The state Legislature is expected to eventually hold hearings on the matter, while a Republican state lawmaker has introduced legislation in the Democrat-controlled Senate to create a commission.
On the federal level, the U.S. Department of Health and Human Services’ Office of the Inspector General is auditing nursing homes’ infection control programs. However, two Republican members of Congress wrote a letter last month asking the office to also investigate New York and four other states that also ordered nursing homes to take in COVID patients.
Hammond hopes for an independent inquiry, too. He said any report on the topic should address more deeply what went wrong, and what will be done in the future.
“This raises a whole bunch of questions, like, would they ever issue a policy like this again, under any circumstances? What if the hospitals had been overwhelmed? What would have been the right thing to do?” he said. “Those things we need to think those things through before the next pandemic, before the second wave of this pandemic. And this paper was an opportunity to do that and it didn't. It didn't engage in that discussion.”
Hammond said he understands why Cuomo and Zucker wanted to disprove that the executive order was the major cause of nursing home deaths. But, he wishes they had been willing to also examine whether the order was responsible for some deaths.
“I think they could have put it on the record in a more fair-minded and even-handed way,” he said, “and you sort of wish the state's public health agency and its official reports would approach these things less politically and more scientifically.”
