New York COVID-19 Nursing Home Scandal Signals that States Must Protect Elderly

Residents in nursing homes and long-term care facilities are dying at alarming rates due to mismanagement and dangerous policies in a number of states.  Harmful state policies such as sending COVID-19 positive patients to these facilities and excessively reducing liability dramatically aggravate COVID-19 cases in nursing homes, undoubtedly bringing more death and illness to America’s seniors, and must be stopped immediately.

In New York, Governor Andrew Cuomo’s administration was responsible for a policy that mandated nursing homes to admit, or readmit, nursing home residents still contagious with COVID-19 after hospital stays, thereby spawning outbreaks at facilities previously free of the virus.  This dangerous policy, which was reversed on May 10, contributed to many of the approximately 5,400 nursing home deaths through May 11 in New York, amounting to more than 5% of the 100,000 nursing home residents in the state, and has been an unmitigated disaster.  Such foolish and incomprehensible policies increase COVID-19 fatalities and must not be permitted.

Cuomo recently signed a law drafted by a pro-Democrat health care lobbying group that offers New York nursing homes legal immunity, something that would likely foster further carelessness at the state’s nursing homes.  Any legislation that directly or indirectly promotes carelessness in the midst of the COVID-19 crisis is a recipe for disaster.

According to a May 3 article in the Associated Press:

Nowhere have the industry’s efforts played out more starkly than in New York, which has about a fifth of the nation’s known nursing home and long-term care deaths and has had at least seven facilities with outbreaks of 40 deaths or more, including one home in Manhattan that reported 98.

New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.

While the law covering both hospital and nursing care workers doesn’t cover intentional misconduct, gross negligence and other such acts, it makes clear those exceptions don’t include “decisions resulting from a resource or staffing shortage.”

And, according to Richard J. Mollot, executive director of the Long Term Care Community Coalition, as reported in a May 7 report in Politico: “State health officials… also directed nursing homes to accept COVID-19 patients, even after the AMDA – The Society for Post-Acute and Long-Term Care Medicine came out against the policy and other states followed suit,” and “that policy was, unfortunately, one of the things that led to a lot of avoidable harm…”

The federal government must ensure that any state with policies that make seniors more vulnerable to COVID-19, stop those policies immediately.  On May 10, after a widespread outcry over New York’s COVID-19 nursing home policy, Cuomo reversed New York's directive, requiring that nursing homes not take in patients until they test negative.  He also announced that all nursing homes must test all staff twice per week to prevent the spread of the virus.

In California, Governor Gavin Newsom is attempting to get nursing homes and assisted living facilities to accept COVID-19 patients, albeit preferably separated from the rest of the facility.  If this policy remains unchecked, it would likely result in a spike in nursing home deaths in California associated with COVID-19.  So far, at least 41% of COVID-19 deaths in California are from nursing homes with an estimated 72% of COVID-19 deaths in Long Beach, CA coming from nursing homes.

Notwithstanding the rate of COVID-19 in California’s nursing homes, Newsom approved a plan to effectively bribe nursing homes and assisted living communities to accept COVID-19 positive patients, paying small facilities of 6 or fewer residents $1,000 a day to accept them, with undisclosed rates for larger facilities.  Like New York and New Jersey, this reckless policy is all but certain to lead to a very significant spike in COVID-19 infections and deaths in California’s nursing homes and assisted living facilities and therefore must be stopped.

In Michigan, Governor Gretchen Whitmer signed an executive order that requires admission of COVID-19 positive patients into nursing homes.  Fellow Michigan Democrat Rep. Leslie Love criticized this policy, saying that introducing “seniors with the virus still recovering from the virus, into an environment with, well, seniors, just didn’t seem -- it’s not a good idea.”

Similarly, New Jersey had also called on nursing homes to admit COVID-19 positive patients.   As of May 12, New Jersey reported that 52% of the COVID-19 related fatalities in the state were at 518 of the state’s long-term care facilities, or 4,953 out of 9,508 total deaths.  The total number of cases in New Jersey’s facilities was 26,476.  With an estimated 44,000 residents in New Jersey nursing homes, about 60% of nursing home residents have contracted COVID-19 and 11% of New Jersey nursing home residents have died from it (or 18.7% of those infected).

As of May 12, reported nursing home deaths from COVID-19 in New York and New Jersey alone account for about 37% of a total of at least 28,100 reported deaths of residents and staff at nursing homes nationwide out of over 153,000 infected.  In total, about 7,700 nursing homes and long-term care facilities in the United States have cases of COVID-19.  Total nursing home deaths comprise about one-third of about 82,000 COVID-19 deaths nationally.  The fact that both states are COVID-19 hotspots and have dangerous nursing home policies means that these states added fuel to the fire, and the resulting conflagration was no surprise.

The first step toward saving lives must be for the federal government to review the nursing home COVID-19 policies of every U.S. state and territory and do whatever possible to compel the correction of harmful policies.  The federal government has the power to decertify substandard facilities.  In light of this, the federal government should inform all long-term care facilities nationally, including nursing homes and assisted living facilities, that admission of any COVID-19 positive patients to their facility in a manner that may risk the health of other patients is automatic grounds for immediate decertification.

At the same time, the federal government should inform governments of states and territories that any policy that endangers the health of residents is unacceptable and the federal government will do all in its power to ensure that such policies do not remain in force.  Instead, states and territories should set up alternative housing designated exclusively for COVID-19 patients with the assistance of the federal government, when requested.  This is of particular importance in light of disastrous nursing home policies (as in New York) that have endangered nursing home residents and caused numerous deaths.

One possible model for this is Washington State, which has three nursing homes that plan to open special COVID-19 units.  Similarly, Connecticut and Massachusetts designated special facilities solely for COVID-19 patients.  Proper separation of nursing home residents from those infected with COVID-19 could help save many lives.

It is also important that when states seek to pass legislation that protects nursing homes and long-term care facilities from liability, that it be done thoughtfully and without too much influence by lobbying groups.  While legislation should offer nursing homes limited protection, it should not be crafted in a manner that even implicitly encourages negligence, and should certainly not make nursing homes and long-term care facilities effectively immune from liability.  Otherwise, such legislation could actually drive more negligence and result in future spikes in the numbers of COVID-19 infections and related deaths.

This is even more important now that more states are moving toward opening up their economies, which is projected to significantly increase COVID-19 cases.  Therefore, it is critically important that the federal government work with state governments to ensure that their policies work to diminish COVID-19 cases in nursing homes and long-term care facilities, rather than increase them, particularly when it comes to keeping COVID-19 patients separate from those free of the virus.  The federal government should work with states to ensure that any legislation that offers some protection from liability to nursing homes should also ensure that nursing homes and staff remain accountable for negligence, particularly where there is legal basis to argue that such negligence likely led to the spread of the virus.

Until COVID-19 has been defeated, Republican and Democrat leaders should work together to limit the spread of the virus in the general population and in long-term care facilities as much as possible.  While many important successes have been achieved, mistakes have been made, as well.  Instead of finger pointing, it is high time that politicians learn from those mistakes in order to prevent further fatal errors.  Countless lives are depending on it.

Image credit: U.S. Navy photo public domain