The Nursing Home Decision That Haunts Andrew Cuomo

One year ago, Gov. Andrew Cuomo (D) made a decision that would come to haunt him.

COVID-19 was pounding New York while much of the country watched the crisis that was to soon overtake their states as well. Taking advantage of emergency powers that allowed him to make pandemic policy unilaterally, Cuomo’s Department of Health informed nursing homes in late March that they could not deny admission to patients discharged from hospitals “solely based on a confirmed or suspected diagnosis of COVID-19.”

The move was meant to free up space in hospitals that were quickly becoming overwhelmed. But it had deadly consequences.

Nursing homes became the lethal epicenter of New York’s pandemic. As of March, more than 15,000 New Yorkers have died of COVID-19 in nursing homes and other long-term care facilities ― making up roughly one-third of the state’s total deaths.

“They were desperately trying to solve a hospital problem, and they created a nursing home problem with what should really have been foreseeable consequences,” said Michael Gusmano, a health policy professor at the Rutgers University School of Health.

A few months later, Cuomo reversed his order. But he also made another fateful mistake: He tried to cover up the devastatingly high death toll in nursing homes.

The Cuomo administration has defended its decision by playing on public dislike of former President Donald Trump. It has argued that it withheld the data because it didn’t want to provide Trump with ammunition to further take aim at New York.

But other Democratic governors, who were also under fire from Trump, confronted the same problems and made different decisions, undercutting Cuomo’s excuses. Cuomo’s failures are especially glaring when paired with the fact that he wrote a book in October touting his leadership during the pandemic.

“Though the timing of inquiries in the months before the election raised red flags about their political nature, we took it seriously. We responded appropriately, and continued to report data in an accurate and timely manner,” said an official in New Jersey Gov. Phil Murphy’s (D) administration, which has received higher marks for its handling of the pandemic.

Cuomo’s press office declined to respond to detailed requests for comment for this story.

“You can come up with excuses and reasons why in the moment the governors were doing the best that they could given the challenges they were facing,” Gusmano added. “You really can’t come up with a good excuse for not being forthright about the data.”

‘Like Talking To A Wall’

Even back in March, nursing home advocates were warning that Cuomo’s directive was a bad idea.

“We were afraid at the time that it would cause greater suffering, sickness and death,” said Christopher Laxton, executive director of the Society for Post-Acute and Long-Term Care Medicine, which represents medical professionals at nursing homes around the country.

Cuomo’s order said nursing homes and other adult care facilities were “prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.”

Technically, the directive did not force nursing homes to accept “medically stable” coronavirus-positive patients discharged by hospitals. Federal law requires nursing homes to decline admission to patients whom the homes lack the staff and resources to properly accommodate.

But advocates for nursing home residents have warned for years that regulators rarely enforce the law, allowing facilities to fill more beds without the legally required investments in staff, personal protective equipment and other resources.

That’s especially true in New York, which has some of the country’s loosest nursing-home regulations and enforcement patterns, according to the Long-Term Care Community Coalition, a New York City-based nursing home industry watchdog and advocacy group for nursing home residents.

“We thought [the nursing home directive] was a very poor idea,” said Richard Mollot, the executive director of the coalition. “There was a lack of thought altogether to the well-being of nursing home residents in New York.”

In late April, the state denied the request of a Brooklyn nursing home where there had already been 55 deaths to have hospital patients sent to the Navy hospital ship Comfort instead. The Navy had sent the Comfort to New York City as an emergency source of hospital beds, but it never came close to reaching capacity, according to multiple reports. (Cuomo claimed that federal law precluded patients discharged from nursing homes from being sent to the Comfort.)

The Army Corps of Engineers also built an auxiliary hospital in the Javits Center, a massive convention center complex in Midtown Manhattan. It, too, would end up with a small fraction of its beds full at the height of the pandemic.

Cuomo’s detractors wonder why the state didn’t avail itself of the extra hospital beds in those two facilities rather than continuing to send coronavirus-positive patients to nursing homes that had become Petri dishes for the virus.

“People ask me all the time, ‘Why did we send people to nursing homes?’” Mollot said. “I don’t have a good answer for them.” (Some news accounts have suggested, however, that among other problems, the Comfort and the Javits Center could not accommodate the most severe COVID-19 cases.)

Regardless, in New Jersey, Murphy made a handful of decisions differently than Cuomo both during and after the peak of the crisis that moderately improved the state’s outcomes relative to New York, winning praise from advocates.

New Jersey was also getting hammered by COVID-19. It has had the most COVID-19 deaths per capita of any state in the country. Yet Murphy took a more accommodating approach to nursing homes that had more support from nursing home advocates.

The state’s health commissioner simply re-issued guidelines from the federal government’s Center for Medicare and Medicaid Services, telling nursing homes to admit any individuals whom they would normally admit to their facility, including “individuals from hospitals where a case of COVID-19 was/is present.”

Critically, New Jersey did not explicitly forbid nursing homes from turning people away based on a positive COVID-19 test.

The health commissioner instead informed nursing homes and other long-term care facilities that they could call the New Jersey government if it was not possible for them to create separate space for COVID-19-positive residents in their facilities and that the government would find a way to accommodate them.

“Pretty clearly, the New York approach was the worse of the two,” said Gusmano.

Laxton credits Murphy for consulting the medical professionals who work in nursing homes in devising his policy. New York was a different story.

“It was like talking to a wall,” Laxton recalled. “We told them to give [our members] a call. And we got nothing.”

The state’s biggest health care corporations, by contrast, had no trouble influencing the Cuomo administration’s pandemic response.

At the urging of the state’s powerful hospital and nursing home lobbies, Cuomo slipped a provision into the state’s budget document shielding health care providers from legal liability for any damages alleged to have been caused in the course of providing health care during the pandemic. That effectively precluded the families of many nursing home patients who died from attempting to hold the facilities accountable for allegedly negligent conduct.

The immunity provision still allowed patients and their families to sue health care providers in cases where a hospital or nursing home allegedly committed “intentional criminal misconduct” or “gross negligence.” But in early March, Cuomo had also relieved health care providers of their ordinary obligations to maintain accurate patient medical records, so it would be virtually impossible for a state regulator to identify deficiencies in care ― let alone for a plaintiff to establish evidence of such claims in court.

Murphy also signed a law providing health care providers broad immunity from lawsuits resulting from care administered during the pandemic. But New Jersey still required health care providers to adhere to their ordinary standards of medical record keeping.

“The relaxation of documentation requirements completely obliterates oversight on any level, whether it’s the state, your own quality assurance or lawsuits for accountability,” said Deborah Gough, a trial lawyer who represents victims of nursing home neglect in New York and New Jersey. “Now it’s going to be that much harder to figure out what happened, what should have been done, and what can be done better next time.”

The Cover-up

After the worst of the pandemic passed in New York, Cuomo reversed the nursing home directive on May 10. Under the new guidelines, hospitals would not be able to send patients to nursing homes unless the patients had tested negative for COVID-19.

Rather than engage in introspection about what went right and what went wrong, though, Cuomo set out to absolve himself of responsibility for the nursing home catastrophe.

Initially he tried to deny that the nursing home directive was tantamount to an order since facilities could inform the state if they were not equipped to receive the patients.

But nursing homes interpreted the directive as a mandate, according to Laxton. And it is unclear whether any nursing homes in the state successfully objected to the admission of a discharged hospital patient.

Cuomo later changed tactics, arguing instead that the directive couldn’t have been responsible for the COVID-19 deaths in the nursing homes because it was employees, rather than patients, who spread the virus.

In June, against the objections of public health officials, Cuomo’s aides lowered the nursing home death estimate in a report due to be issued by the state Department of Health, according to a New York Times report on Thursday.

And in July, his health department released a paper claiming that nursing home employees were to blame for spreading the disease.

But regardless of the exact effect of the admission of former hospital patients on the death toll, a number of public health experts panned the paper’s methodology.

“The study in July was not designed to assess the causal impact of that policy,” said Denis Nash, an epidemiologist at the City University of New York’s school of public health. “I did not agree that the report answered the question.”

Cuomo’s tendency to devote more energy to managing his image than determining the best ways to craft and implement policy would lead him to his biggest misstep yet.

State lawmakers and advocates for nursing home residents suspected early on that the state’s official tally of COVID-19 deaths in nursing homes was artificially low. In August, Cuomo defended the state’s decision to count only the deaths that occurred inside the nursing homes, rather than including nursing home residents who subsequently died in hospitals.

Even before it became clear just how low the numbers were, New York’s system for counting the dead was a “red flag” for Nash.

“It’s important to know the true count of deaths among nursing home residents in New York state and everywhere in the country, because they are among the most vulnerable citizens devastated by this pandemic,” he said.

For state lawmakers, the lack of comprehensive data limited their ability to exercise oversight.

The governor successfully resisted requests from Democrat Ron Kim, chair of the New York State Assembly’s aging committee, and other legislators, to disclose that information.

When New York Attorney General Letitia “Tish” James issued her report in late January estimating that the state was undercounting nursing home deaths by 50%, it validated Kim and other Cuomo critics’ worst fears. While the state counted about 6,600 nursing home deaths as of mid-November, the real figure was more than 12,700, according to the attorney general. (It has since surpassed 15,000.)

Following the attorney general’s report, top Cuomo aide Melissa DeRosa told Kim and other lawmakers that they had declined to release more data because they did not want to provide political ammunition for the Trump administration, according to a report in the New York Post.

“If the DOJ inquiry comes and your answer is, ‘We didn’t know what numbers we were going to give them and also give you [the lawmakers],’ that’s not OK,” said Bronx state Sen. Alessandra Biaggi (D), an attorney and former Cuomo aide who now serves on the state Senate Health Committee. “It’s so clear that what they were trying to do was report lower numbers for not only their image but also so that they would evade a DOJ investigation. What?! That’s crazy.”

Trump’s Department of Justice indeed politicized the nursing home deaths in several states with Democratic governors to distract from Trump’s own mishandling of the pandemic.

The Justice Department’s civil rights division considered launching an investigation into how state-owned nursing homes in New York, New Jersey, Michigan and Pennsylvania responded to the pandemic, sending a letter in August to all four states’ governors demanding documents and information about conditions in those facilities. The scope of the letter, sent to just four prominent Democratic governors, elicited widespread charges in the legal community that the Department of Justice was engaged in a partisan witch hunt.

But out of the four governors Trump targeted, Cuomo appears to be the only chief executive who responded by doubling down on his decision to count only nursing home deaths that occurred in nursing homes. Spokespeople for Murphy of New Jersey and Gov. Tom Wolf of Pennsylvania told HuffPost that they always counted the deaths of nursing home residents that took place in hospitals toward the total number of nursing home deaths.

A spokesperson for Gov. Gretchen Whitmer of Michigan did not respond to multiple requests for comment. A number of Republican state senators in Michigan maintain, however, that Whitmer has still not addressed discrepancies in how nursing home deaths were reported and are calling for an investigation into her handling of the nursing home crisis.

At the very least, the level of scrutiny Cuomo has attracted from the federal government is unusual. The FBI and the Department of Justice’s office in Brooklyn announced in mid-February that they were investigating Cuomo’s handling of the nursing home crisis.

In New Jersey, where the timing and scope of the pandemic’s effect were deeply interconnected with the outbreak in New York, Murphy’s overall response to criticism of his handling of the nursing home crisis could not have been more different from Cuomo’s.

In May, Murphy commissioned the consulting group Manatt Health to conduct a three-week assessment of the state’s management of the pandemic in nursing homes.

The firm’s report recommended that the state improve nursing home workers’ pay and benefits, increase staffing levels, enact tougher data reporting standards, consolidate and strengthen oversight, and establish new protocols for infection control.

Murphy signed four bills into law in September based on Manatt’s recommendations. The bills established new requirements for the state’s infectious diseases preparedness; created a task force charged with recommending further-reaching changes, such as appropriate staff-to-resident ratios; increased the minimum wage for nursing home workers; and temporarily increased the state’s nursing home reimbursement rates.

“We haven’t seen that in New York,” Mollot said. “We haven’t seen that kind of leadership, especially from the governor’s side, to really make change in this area.”

Of course, the nursing home scandal is just one of the problems Cuomo is dealing with at the moment. In the past two weeks, three women have come forward to accuse Cuomo of unwanted sexual advances, two of whom were his aides.

For years, it was conventional wisdom in New York that voters tolerated ― and even liked ― Cuomo’s reputation as a bruiser who brooked no dissent from his enemies. Democrats who disagreed with him were afraid to go against him because of the political repercussions.

But one effect of the increasing scrutiny on Cuomo in recent weeks is that Democrats in the state legislature are more willing to challenge him. The legislature plans to strip Cuomo of the emergency powers it granted him at the start of the pandemic.

Democrats in the legislature also hope to squeeze more concessions from Cuomo in the budget-making process over the next few weeks. The state Constitution requires approval of the next fiscal year’s budget by April 1. The more progressive legislature has been pushing to increase taxes on the rich against Cuomo’s objections.

“The governor is not in a position of strength,” said state Sen. Julia Salazar (D-Brooklyn), who is a member of the budget and revenue committee. “I don’t think he’s in a position to throw a bunch of poison pills into a big ugly and demand the legislature pass it.

“That’s his M.O. in the budget process,” she added. “I don’t think the public would be on his side if he did that this time.”