Senior citizen woman in wheelchair in a nursing home.

COVID-19 and Nursing Homes: The New York State Experience

By James W. Lytle 

While New York State has generally earned high marks for its response to the COVID-19 pandemic, nagging questions continue over whether more might have been done to protect patients in nursing homes and other congregate settings — and whether some of the state’s policies even may have made matters worse.

Lessons from the New York State experience may prove helpful to those regions that have displaced New York as the epicenter of the American pandemic, and may help ensure that adequate steps are taken to protect the most frail and vulnerable among us from any resurgence of COVID-19 or from some future disease.

Although New York was among the hardest hit states, with the highest number of deaths thus far (over 32,000, more than twice as many as California), the aggressive steps taken by Governor Andrew Cuomo and his administration have been widely credited with reducing the spread of the disease in the State.

But a key, sustained criticism of the Governor’s handling of the pandemic focuses on the state’s nursing homes.

To be fair, New York has not been the only state singled out for its COVID-related nursing home experience. Similar concerns have been raised elsewhere, including in New Jersey, where more than 6,700 nursing home residents died from COVID-19, and Massachusetts, where over 64% of the Commonwealth’s COVID deaths are connected to nursing homes and 76 veterans died of COVID-19 in a single soldier’s home. Eighteen states have reported that more than half of their COVID deaths were in long term care facilities and, in three states (New Hampshire, Rhode Island, and Minnesota), nursing home residents have accounted for more than 75% of COVID deaths.

Indeed, from the very beginning of the pandemic, residents of nursing homes have been among the most vulnerable: The Life Care Center at Kirkland in suburban Seattle was the poster child when the pandemic first struck the United States, with 81 of its residents – two-thirds of its population – contracting the virus, and at least 37 dying from it.

The fact that nursing home residents have been so vulnerable to COVID-19 is not surprising: the advanced age of the residents, their co-morbidities, and the very nature of congregate care place nursing home residents at extreme risk. Nevertheless, it is fair to ask whether more could have been done to slow the spread of the virus within long-term care facilities—and whether some steps taken by New York and other states exacerbated risks to nursing home residents.

During the early stages of the pandemic, news reports focused on nursing homes, including a single nursing home in Brooklyn that reported 55 deaths, and widespread complaints from nursing homes that lacked sufficient Personal Protective Equipment (PPE) to protect their workers and their patients. Governor Cuomo insisted that it’s “not our job” to ensure that the nursing homes had adequate PPE.

As concern over the safety of nursing home residents continued to escalate, the Governor responded by announcing that the State Department of Health, along with the State’s Attorney General, would undertake an investigation of nursing homes “to make sure they’re following the rules.” (Neither the Governor nor the Attorney General have spoken much further about the “investigation,” and a nursing home industry news service reported that he had reconsidered that approach within a month of announcing it.)

Even the most basic information relating to the nursing home experience in New York is either disputed or unknown — including the baseline question of how many nursing home deaths actually occurred in the state.

New York State officials assert that approximately 6,400 nursing home residents died in the pandemic, an absolute amount that was second only to New Jersey, but a total that represents only about one in five of the overall death toll from COVID in New York. However, the New York tally only counts those individuals who actually died in the nursing home — and excludes those who may have contracted the disease in the long-term care facility, but died elsewhere — contrary to how most other states have reported COVID-19 deaths.

Beyond the dispute over the numbers, critics have focused upon a policy directive from the New York State Department of Health when the crisis was at its worst. The directive, issued on March 25, 2020, highlighted the “urgent need to expand hospital capacity in New York State to be able to meet the demand for patients with COVID-19 requiring acute care.” The key message of the directive was as follows:

No resident shall be denied re-admission or admission to the NH [nursing home] solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.

In an understandable effort to ensure that hospital capacity would be sufficient to meet the surge of COVID patients requiring acute care, the policy was intended to make sure that hospitals could expeditiously transfer patients back to nursing homes. Whether the policy may have inadvertently resulted in accelerating the spread of COVID-19 in long-term care facilities by multiplying the exposure of nursing home residents to COVID-19 patients has been the subject of a prolonged and still unsettled debate.

In the policy’s aftermath, the Governor asserted that nursing homes had the prerogative, and even the obligation, to decline admission of patients if they were not able to care for them — a position that seemed inconsistent with the terms and the spirit of the directive. On May 10th, two months after the controversial policy was put in place, the directive was rescinded and new policies were instituted, including a prohibition on the discharge of COVID-positive patients to nursing homes, and a mandate of regular testing of nursing home staff.

Even after it was rescinded, the policy remained a source of controversy. Ten Republican members of the House of Representatives wrote to the NYS Attorney General, Letitia James, to urge her to “formally review the impact of this deadly policy and make your findings available to the citizens of New York and families of those who lost loved ones as a result of this deadly policy.” State legislators from both parties joined in criticizing the policy and have joined in calls for new policies governing COVID-19 in nursing homes.

The NYS Department of Health responded with a report that minimized the impact of the policy on nursing home deaths. The report’s key conclusion was that the disease was spread by infected staff members, not by discharged hospital patients, evidenced by the fact that the bulk of the hospital patient transfers occurred after nursing home mortality reached its peak, “therefore illustrating that nursing home admissions from hospitals were not a driver of nursing home infections or fatalities.” In addition, the report found that most patients admitted to nursing homes from hospitals were no longer contagious at the time of nursing home admission. The report also highlighted the fact that the percentage of total New York COVID-19 deaths that occurred in nursing homes (21%) was among the nation’s lowest.

But the report did little to end the controversy. The Legislature responded by convening a two-day, 22 hour joint hearing of the State Senate and the State Assembly Health Committees. After quoting Governor Cuomo’s comment that the virus could spread “like fire in dry grass” among the elderly, one legislator stated, “It’s now up to the Legislature to determine who lit the match and how and why the fire fanned out.” The Senate Health Committee chair accused the Health Commissioner of deliberately undercounting nursing home deaths “to make you look better.” A conservative health care public policy think tank noted that the State’s assertions of how well it did in comparison to other states was “doubly misleading: first because the state’s count of nursing home deaths is artificially low, and second because its total death count is unusually high.” The Assembly Health Committee chair dismissed the Department’s low nursing home death count as “patently ridiculous.”

State legislation (Senate Bill No. 8756/Assembly Bill No. 10857) has been proposed to create an independent commission to investigate COVID-19 in nursing homes, a proposal that the Governor has already rejected. Meanwhile, the United States Department of Justice requested information from the state, under the Civil Rights of Institutionalized Persons Act (CRIPA), to determine whether it should launch an investigation into the state’s response to COVID-19 in its nursing homes. CRIPA only applies, however, to “public nursing homes” (i.e., those operated by the state and local governments), which represent a very small percentage of the nursing homes in New York.  Finally, the New York State Bar Association named a panel of lawyers to “examine what happened to individuals receiving care in nursing homes and from other long-term care providers” and to identify “what lessons can be learned and whether laws . . . need to be changed to achieve a better outcome.”

While controversies over the mortality statistics and the since-rescinded nursing home admission mandate remain the hottest political issues, the more consequential issues may relate to the overall lack of preparation within the long term care industry for the pandemic — a responsibility that is shared by the facilities and state policymakers. State officials were, perhaps understandably, laser focused on what the hospital sector needed as the crisis unfolded — reflecting both the urgency of the need for acute hospital capacity and the fact that hospitals have traditionally received more attention from decision-makers than long-term care facilities.

While the current debate has been more political and punitive than productive, perhaps the COVID-19 pandemic will prompt a more thoughtful review of the underlying issues contributing to its impact on the nursing home and congregate care sector: the inadequacy of the sector’s financing (which may become even more strained as a result of the State’s pandemic-related budget crisis); its reliance on underpaid staff (who often work at multiple facilities to make a living wage, thereby potentially compounding the spread of the disease); the widespread failure of facilities to maintain adequate infection control; the unavailability of PPE and other protective supplies for nursing homes; and the overall lack of pandemic planning and preparedness by relevant state and local officials. And perhaps this controversy will result in greater transparency by health care policymakers, at least when it comes to reporting on deaths by an infectious disease.

James W. Lytle is Senior Counsel at Manatt, Phelps & Phillips, LLP and a fellow in the Advanced Leadership Initiative at Harvard University.

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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