POST 135. February 27, 2021. CORONAVIRUS. “As Chief Executive Officers of New York’s major health care systems, we would like to provide facts to clear up confusion in the public and the media regarding decisions to discharge patients to nursing homes during New York’s spring coronavirus surge.”

“Attorney General Letitia James today released a report on her office’s ongoing investigations into nursing homes’ responses to the COVID-19 pandemic. Since March, Attorney General James has been investigating nursing homes throughout New York state based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees….

The report includes preliminary findings based on data obtained in investigations conducted to date, recommendations that are based on those findings, related findings in pre-pandemic investigations of nursing homes, and other available data and analysis. Based on this information and subsequent investigation, OAG is currently conducting investigations into more than 20 nursing homes across the state. OAG found that:

A larger number of nursing home residents died from COVID-19 than DOH data reflected;

Lack of compliance with infection control protocols put residents at increased risk of harm;

Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates;

Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm;

Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm;

The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE;

Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and

Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.

Preliminary data obtained by OAG suggests that many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in DOH’s published total nursing home death data. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. In fact, the OAG found that nursing home resident deaths appear to be undercounted by DOH by approximately 50 percent…

OAG received numerous complaints that some nursing homes failed to implement proper infection controls to prevent or mitigate the transmission of COVID-19 to vulnerable residents. Among those reports were allegations that several nursing homes around the state failed to plan and take proper infection control measures, including:

Failing to properly isolate residents who tested positive for COVID-19;

Failing to adequately screen or test employees for COVID-19;

Demanding that sick employees continue to work and care for residents or face retaliation or termination;

Failing to train employees in infection control protocols; and

Failing to obtain, fit, and train caregivers with PPE….

There are 619 nursing homes in New York, and 401 of these facilities are for-profit, privately owned, and operated entities. Of the state’s 401 for-profit facilities, more than two-thirds — 280 nursing homes — have the lowest possible CMS Staffing ratings. The Staffing rating reflects the number of staffing hours in the nursing department of a facility relative to the number of residents. As of November 16, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in these 280 facilities. Some of these facilities have also been known to transfer facility funds to owners and investors, rather than use them to invest in additional staffing to care for residents.

Pre-existing, insufficient staffing levels put residents and staff at increased risk of harm during the pandemic. As nursing home resident and staff COVID-19 infections rose during the initial wave of the pandemic, staffing absences increased at many nursing homes. As a result, already-low staffing levels decreased even further, to especially dangerous levels in some homes, even as the need for care increased due to the need to comply with COVID-19 infection control protocols and the loss of assistance from family visitors. OAG’s preliminary investigations reflect many examples where for-profit nursing homes’ pre-pandemic low staffing model simply snapped under the stress of the pandemic….

In addition, preliminary investigations indicate that when there were insufficient staff to care for residents, some nursing homes pressured, knowingly permitted, or incentivized existing employees who were ill or met quarantine criteria to report to work and even work multiple consecutive shifts, in violation of infection control protocols. These policies put both residents and staff at great risk.

Despite these disturbing and potentially unlawful findings, due to recent changes in state law, it remains unclear to what extent facilities or individuals can be held accountable if found to have failed to appropriately protect the residents in their care.” (A)

“More than 9,000 recovering coronavirus patients in New York state were released from hospitals into nursing homes early in the pandemic under a controversial directive that was scrapped amid criticism it accelerated outbreaks, according to new records obtained by The Associated Press.

The new number of 9,056 recovering patients sent to hundreds of nursing homes is more than 40% higher than what the state health department previously released. And it raises new questions as to whether a March 25 directive from Gov. Andrew Cuomo’s administration helped spread sickness and death among residents, a charge the state disputes.

“The lack of transparency and the meting out of bits of important data has undermined our ability to both recognize the scope and severity of what’s going on” and address it, said Richard Mollot, the executive director of the Long Term Care Community Coalition, a residents advocacy group.

The new figures come as the Cuomo administration has been forced in recent weeks to acknowledge i t has been underreporting the overall number of COVID-19 deaths among long-term care residents. It is now nearly 15,000 up from the 8,500 previously disclosed.

The Cuomo administration’s March 25 directive barred nursing homes from refusing people just because they had COVID-19. It was intended to free up space in hospitals swamped in the early days of the pandemic. It came under criticism from advocates for nursing home residents and their relatives, who said it had the potential to spread the virus in a state that at the time already had the nation’s highest nursing home death toll.

In its reply to an AP Freedom of Information request from May, the state health department this week released two figures: a previously disclosed count of 6,327 admissions of patients directly from hospitals and a new count of 2,729 “readmissions” of patients sent back from a hospital to the nursing home where they had lived before.

Before the state released any data, the AP conducted its own survey and found at least 4,500 such patients.

Critics have long argued there were many other places those patients could have been sent, including New York City’s Jacob Javits Convention Center, which had been set up as a makeshift hospital, and the USS Comfort military hospital ship. The state contends those facilities were not suitable substitutes for the care of nursing homes.

Cuomo reversed the directive May 10, barring nursing homes from accepting COVID-19 patients without a negative test first.

State health officials contend that asymptomatic nursing home employees, not recovering COVID-19 patients, were the driving factor in nursing home outbreaks. And they have repeatedly noted that by law, nursing homes weren’t supposed to accept anyone they couldn’t adequately care for.

“At least 98% of nursing home facilities in the state had COVID in their facility before their first admission or readmission, and as we’ve seen across the nation, the major driver of infections appears to be from asymptomatic staff through no fault of their own,” said state Health Commissioner Dr. Howard Zucker in a statement to the AP.” (B)

“When New York Gov. Andrew Cuomo was first accused of undercounting nursing home deaths from Covid-19, his administration offered a simple explanation:

The state did not include nursing home residents who died in the hospital in the publicly posted tally of coronavirus deaths linked to long-term care facilities, officials said, because it wanted to avoid a “double count” of those deaths in the statewide total.

But New York stands apart from other states in taking this approach to counting nursing home deaths, research experts said — a decision that made New York’s tally of nursing home deaths appear lower than it was, and that is now under federal investigation.

“It’s tricky to compare state-level data, but New York is the only state that explicitly stated that they were excluding hospital-based deaths,” said Priya Chidambaram, a senior policy analyst at the Kaiser Family Foundation, a nonprofit research organization…

“They’re using the need for maximum accuracy and the difficulty of reconciling the two data sets as a rationale for postponing” the release of public information, he said.” (C)

“Gov. Andrew Cuomo’s top aide privately apologized to Democratic lawmakers for withholding the state’s nursing home death toll from COVID-19 — telling them “we froze” out of fear that the true numbers would “be used against us” by federal prosecutors, The Post has learned.

The stunning admission of a coverup was made by secretary to the governor Melissa DeRosa during a video conference call with state Democratic leaders in which she said the Cuomo administration had rebuffed a legislative request for the tally in August because “right around the same time, [then-President Donald Trump] turns this into a giant political football,” according to an audio recording of the two-hour-plus meeting.

“He starts tweeting that we killed everyone in nursing homes,” DeRosa said. “He starts going after [New Jersey Gov. Phil] Murphy, starts going after [California Gov. Gavin] Newsom, starts going after [Michigan Gov.] Gretchen Whitmer.”

In addition to attacking Cuomo’s fellow Democratic governors, DeRosa said, Trump “directs the Department of Justice to do an investigation into us.”

“And basically, we froze,” she told the lawmakers on the call.

“Because then we were in a position where we weren’t sure if what we were going to give to the Department of Justice, or what we give to you guys, what we start saying, was going to be used against us while we weren’t sure if there was going to be an investigation.”

DeRosa added: “That played a very large role into this.”

After dropping the bombshell, DeRosa asked for “a little bit of appreciation of the context” and offered what appears to be the Cuomo administration’s first apology for its handling of nursing homes amid the pandemic.

But instead of a mea culpa to the grieving family members of more than 13,000 dead seniors or the critics who say the Health Department spread COVID-19 in the care facilities with a March 25 state Health Department directive that nursing homes admit infected patients, DeRosa tried to make amends with the fellow Democrats for the political inconvenience it caused them.

“So we do apologize,” she said. “I do understand the position that you were put in. I know that it is not fair. It was not our intention to put you in that political position with the Republicans.”” (D)

“After insisting his administration had done nothing wrong last week, Governor Andrew Cuomo, on Monday, did not directly apologize for a lack of transparency surrounding the record-keeping of COVID deaths in nursing homes during the pandemic. Instead, he admitted that his administration made a “mistake” by not being transparent about the deaths, which created a “void” that was “filled with skepticism, and cynicism, and conspiracy theories which furthered the confusion.”…

NY1 summarized Friday that the administration “has contended nursing home and long-term care facility data surrounding deaths of residents was a mess and the thousands of fatalities that occurred in different locations has been difficult to accurately reconcile into one number.” Cuomo’s office, responding to this week’s leaked meeting, gave NY1 a timeline of the events DeRosa discussed backing her account. DeRosa herself defended her private comments by reiterating them in a statement:

I was explaining that when we received the DOJ inquiry, we needed to temporarily set aside the Legislature’s request to deal with the federal request first. We informed the houses of this at the time. We were comprehensive and transparent in our responses to the DOJ, and then had to immediately focus our resources on the second wave and vaccine rollout. As I said on a call with legislators, we could not fulfill their request as quickly as anyone would have liked.” (E)

“Cuomo has defended the move as being in line with federal guidelines, adding that, at the time, the top priority was not letting hospitals be overrun. Cuomo insisted on Monday that there has been “much distortion” around the March 25 memo, and said patients were only received at nursing homes if a given home verified they had the capability to accept them, as required by New York law.

Of the 613 nursing homes in New York, Cuomo said 365 received a patient from a hospital. Of the 365, Cuomo said 98% already had COVID-19 in their facilities.

“COVID did not get into the nursing homes from people coming from hospitals,” Cuomo said Monday. “COVID got into nursing homes by staff walking into nursing homes.”” (F)

“The FBI and federal prosecutors in Brooklyn are investigating Gov. Andrew Cuomo’s coronavirus task force with a particular focus on his administration’s handling of nursing homes early in the coronavirus pandemic, two sources familiar with the matter told ABC News.” (G)

Statement by New York Hospital System CEOs (H)

NEW YORK, Feb. 24, 2021 /PRNewswire/ — As Chief Executive Officers of New York’s major health care systems, we would like to provide facts to clear up confusion in the public and the media regarding decisions to discharge patients to nursing homes during New York’s spring coronavirus surge.

Collectively, our hospitals treated more COVID-19 patients than any group of hospitals in the nation. Since the pandemic began, hospitals in New York State have safely cared for and discharged 135,000 COVID-19 inpatients. Every patient we treat is precious. We are particularly saddened by every patient that has passed away. This disease has taken a significant emotional toll on patients’ families and on our hardworking and dedicated staff.

Starting in late February and early March of 2020, New York hospitals mounted the largest mobilization of health care resources in our nation’s history. We rose to the challenge—but early in the pandemic it was not clear how many patients we would need to admit to our hospitals and not at all clear that we would not become overwhelmed and unable to safely care for our patients. With the Italian experience informing our planning and preparedness efforts, where hospitals were completely overwhelmed, we did everything possible to increase capacity. We cancelled thousands of non-urgent surgeries, procedures, and treatments. We significantly increased our bed capacity within days and were required to develop plans to increase capacity even more.

Part of this effort was to discharge patients to non-hospital care settings where they could be safely cared for, including nursing homes. It is an everyday practice for hospitals to discharge stable, medically recovered patients to nursing homes so long as the nursing home can safely care for the patient. This is true even of infectious patients who are medically stable, if proper precautions are taken.

Federal and NYS guidance make this clear. The U.S. Centers for Medicare and Medicaid Services emphasized this on March 13, 2020—two weeks before the New York State Department of Health issued its March 25th directive—when it stated that nursing homes “can accept a resident diagnosed with COVID-19 and still under Transmission-Based Precautions for COVID-19 [from a hospital] as long as the facility can follow CDC guidance for Transmission-Based Precautions.” The guidance emphasized: “Nursing homes should admit any individuals that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was/is present.”1 The March 25th NYS directive closely adheres to this Federal guidance, stating that a resident cannot be denied admission to a nursing home based “solely” on a confirmed or suspected COVID-19 diagnosis, and made clear that precautions must be maintained.2 Nothing in either the Federal or State guidance and directives required nursing homes to accept patients that they could not safely care for. Indeed, the longstanding New York State regulatory requirement that a nursing home “shall accept and retain only those nursing home residents for whom it can provide adequate care” remained in effect.3 In addition, Federal regulations continued to require that nursing homes protect all residents and staff from communicable diseases.4

Experts from across the globe and our own CDC have concluded that COVID-19 patients are only contagious relatively early in their illness. The latest report from the CDC states that most adults with moderate COVID-19 disease “remain infectious no longer than 10 days after symptom onset.”5 The CDC also states that, while there have been reports of potentially infectious virus in some adults with severe disease between 10 and 20 days after symptom onset, it was estimated that 88% and 95% of their specimens were no longer infectious after 10 and 15 days, respectively, following symptom onset.

Many studies have also found that the maximum infectious period is within the first week of illness, with some studies finding maximum infectiousness occurring from 2-3 days before the onset of symptoms and 2-3 days after.6 In many cases, then, including residents in nursing homes, the time period of maximum infectiousness is prior to admission to a hospital, both during an asymptomatic period and 2-3 days after symptoms occur.7

In spring 2020, the average length of hospital stay for COVID-19 hospitalized patients discharged to nursing homes from our hospitals was nearly 10 days. This suggests that a great many recovering COVID-19 patients who were discharged from hospitals to nursing homes in New York were no longer transmitting the virus. Most, if not all, would have been admitted to the hospital once they were highly symptomatic, which would have been several days after first contracting the virus. They then would have spent many days in the hospital.

Given that COVID-19 nursing home residents that were admitted to our hospitals had already, by definition, contracted COVID-19 in their nursing homes, discharging them back to their nursing homes—so long as their nursing homes could properly care for them under Federal and State guidelines and with proper precautions–was a prudent and safe option, both for them and the other residents in their nursing homes.

Steven J. Corwin, MD, President and CEO, NewYork-Presbyterian

Kenneth L. Davis, MD, President and CEO, Mount Sinai Health System

Michael Dowling, President and CEO, Northwell Health

Robert I. Grossman, MD, Chief Executive Officer, NYU Langone Health

Philip O. Ozuah, MD, PhD, President and CEO, Montefiore Medicine

(A)Attorney General James Releases Report on Nursing Homes’ Response to COVID-19, https://ag.ny.gov/press-release/2021/attorney-general-james-releases-report-nursing-homes-response-covid-19

(B) AP: Over 9,000 virus patients sent into NY nursing homes, By BERNARD CONDON and JENNIFER PELTZ, https://apnews.com/article/new-york-andrew-cuomo-us-news-coronavirus-pandemic-nursing-homes-512cae0abb55a55f375b3192f2cdd6b5

(C)Gov. Cuomo says N.Y. couldn’t report nursing home deaths in hospitals. But other states did., By Suzy Khimm, https://www.nbcnews.com/politics/politics-news/gov-cuomo-says-new-york-couldn-t-report-nursing-home-n1258641

(D) Cuomo aide Melissa DeRosa admits they hid nursing home data so feds wouldn’t find out, By Bernadette Hogan, Carl Campanile and Bruce Golding, https://nypost.com/2021/02/11/cuomo-aide-admits-they-hid-nursing-home-data-from-feds/

(E) Cuomo Denies Alleged Cover-up in Crisis Surrounding Nursing-Home Deaths, By Chas Danner and Matt Stieb, https://nymag.com/intelligencer/2021/02/cuomo-faces-crisis-over-alleged-nursing-home-death-cover-up.html

(F) Cuomo admits “mistake” in withholding nursing home deaths, BY CAROLINE LINTON, https://www.cbsnews.com/news/cuomo-nursing-home-deaths-withholding-data-new-york/

(G) New York Gov. Andrew Cuomo under investigation for nursing home deaths, by Aaron Katersky, https://abcnews.go.com/Politics/york-gov-andrew-cuomo-investigation-nursing-home-deaths/story?id=75960261

(H) Statement by New York Hospital System CEOs, https://www.prnewswire.com/news-releases/statement-by-new-york-hospital-system-ceos-301235037.html