It was a lie.
New York State never demanded or directed that any nursing home accept a COVID-positive patient. The Federal Centers for Medicare & Medicaid Services guidance was that a nursing home should continue to accept patients from hospitals where COVID-19 was present, and not discriminate against a COVID-positive person. The state followed the guidance, stating that nursing homes should not reject a patient “solely on the basis” of COVID status. It also applied to hospitals. We couldn’t have a situation in which elderly patients who had been treated in hospitals ended up on the street because their nursing homes refused to take them back. Nor could we have a situation in which hospitals refused to take a COVID-positive person.
The context here is very important. Early on in the crisis, our main fear was that the hospitals would be overwhelmed, and collapse. All health professionals agreed that if that situation developed, we would need to free up hospital beds for people with critical needs. As it turned out, our successful efforts to reduce the viral transmission rate and create additional beds meant we were never in that dire situation. The state always had additional beds available all across the state. Therefore, the critics’ premise that we “forced” nursing homes to take COVID-positive people is patently false and illogical because we always had alternative available beds throughout the state. We never “needed” nursing home beds.
Also, the critics misstate the law and policy. No law or policy would have ever required a nursing home to take any COVID-positive person. The policy was that nursing homes couldn’t discriminate, not that they had to accept. That makes all the difference in the world. In fact, in New York law, it is clear that a nursing home can “only accept” a patient that it is prepared and equipped to treat given the needs of the other patients in its facility.
The law clearly states that while nursing homes cannot discriminate, they also cannot accept any patient that they cannot properly care for—in this instance, that specifically meant nursing homes had to be able to separate residents into cohorts of positive, negative, and unknown and needed separate staffing teams to deal with COVID-positive residents and nonpositive residents. They had an obligation to keep the other residents safe from the virus. If they couldn’t do that, then they could not accept a COVID-positive person and they were legally obligated to decline that person’s admission. In fact, many nursing homes in New York did just that, opting not to accept COVID patients. Factor into this the reality that nursing homes get paid for every person they treat, so they have financial issues. The law therefore dictates that every nursing home must have the capacity to effectively treat every patient as a safeguard to financial interest.
The facts totally defeated the Republican claim. Interestingly, this was not even a New York–specific issue. Quite the opposite. New York was number forty-six out of fifty in the nation when it came to percentage of deaths in nursing homes. There were only four states with a lower percentage of nursing home deaths, and New York had a much worse situation to manage. But this was all politics. No one wanted to hear the facts.
In early July, the New York State Department of Health did a full review of nursing homes in the state, and what it showed was that the virus came into nursing homes as the workforce got infected—mainly through asymptomatic spread. Twenty thousand nursing home workers were COVID-positive in March and April, and who knows how many there might have been who were COVID-positive in January and February, before we were doing testing. In the geographic regions where the infection rate was higher, more staff got infected and brought the virus into facilities. It is also possible that visits early on from family and friends brought the virus into facilities before they were banned. The rate of infection and deaths in nursing homes correlated with that of the broader regional community—a phenomenon that played out in every single state across the country and in nations around the world.
On May 10, as soon as we had the capacity, we mandated testing twice a week for staff of nursing homes. Any infected staff were identified and not allowed into the facility. The nursing home operators were very unhappy with the regulation, but I wanted to make sure we did everything we could. Ironically, the same Republican politicians who seized on the order not to discriminate against COVID patients were also the loudest critics of the staff testing mandate.
Political attacks aside, the situation in nursing homes has kept me up at night from the beginning. I have spoken with governors across the country, international and medical experts, nursing home operators, and family who lost loved ones. I am continually thinking it through because in my mind we are always preparing for the next time, and I believe there will be a next time. I wonder what we could have done differently and can do differently in the future.
Here is the conundrum. The virus was here earlier than we knew and therefore was spreading among the nursing home workers before we were aware. There is nothing New York could have done about that. I don’t know even today that New York can do anything besides push the federal government to build an effective CDC and global alert system. The federal government was also wrong about asymptomatic spread. Again, all New York can do is push for a competent federal health agency. But even once we knew that the virus was here and the nursing home workforce was probably getting infected, what could we do? The ideal scenario would be to
