New York Required Nursing Homes To Accept COVID Patients

A New York state policy requiring nursing homes to accept patients who were positive for COVID-19 may be responsible for the spread of the virus in several elder-care facilities. The order, issued on March 25, was apparently intended to ease the burden on hospitals that were becoming overwhelmed as the outbreak spread throughout New York City.

The one-page document says in part:

During this global health emergency, all NHs must comply with the expedited receipt of residents returning from hospitals to NHs. Residents are deemed appropriate for return to a NH upon a determination by the hospital physician or designee that the resident is medically stable for return.
Hospital discharge planners must confirm to the NH, by telephone, that the resident is medically stable for discharge. Comprehensive discharge instructions must be provided by the hospital prior to the transport of a resident to the NH.
No resident shall be denied re-admission or admission to the NH 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.

The order cited “an urgent need to expand hospital capacity” as the reason for the policy. It also stipulated that “critical personal protective equipment (PPE) needs should be immediately communicated” to local emergency management offices.

When asked about the policy in a press briefing, New York Gov. Andrew Cuomo said, “They have to readmit COVID-positive residents, but only if they have the ability to provide the adequate level of care under Department of Health and CDC guidelines.”

Cuomo added, “If they do not have the ability to provide the appropriate level of care, then they have to transfer that patient or they call the Department of Health, and the Department of Health will transfer that patient.” No such requests had been made per state officials.

In one Long Island nursing home, the Gurwin Jewish Nursing and Rehabilitation Center, there was only one known Coronavirus patient before the order. Per an NBC News report, infected patients were transferred in after the order in the last week of March. A month later, an outbreak in the facility has killed 24 residents and one staff member. Only three of the deaths were patients who had been transferred in. At the time of the report, the facility had 40 known Coronavirus cases among long-term residents and 18 patients who had been transferred in.

“We can’t say for sure” whether the outbreak would have happened even without the transfer order, said Stuart Almer, the facility’s president and CEO, “But it’s certainly not helping the situation.”

New York was not the only state to implement such a policy. Other hard-hit areas such as New Jersey and California have instituted similar but more lenient rules. California’s rule says that COVID patients will primarily be sent to facilities with adequate PPE and the ability to follow federal infection-control guidelines. In New Jersey, nursing homes that accept Coronavirus patients are required to separate residents into groups of infected, exposed, and not exposed.

New York’s guidelines were relaxed as the hospital system became overwhelmed with COVID patients. Originally, the state required two negative tests, a seven-day wait since testing positive, and no fever before infected patients could be discharged. That changed as the virus spread and unoccupied hospital beds became scarce. Recuperating patients were moved from hospitals to nursing homes to free up hospital beds.

“The policy is to ensure people are not being held in hospitals solely due to their COVID status,” Jill Montag, a state health department spokeswoman, told NBC. “This is important for hospital surge management and their ability to maintain space for patients with acute needs.​”

Almer believes that his facility had no choice but to accept patients due to the order. Gurwin initially housed the COVID patients in a separate 40-bed unit with separate staff and protective gear. The unit quickly filled up, however, and hospital transfers kept coming.

An unnamed executive at a nursing home in Queens told the New York Post, “The first two coronavirus patients were accompanied by five body bags.” The shipment was reportedly followed up with regular shipments of five additional body bags every week.

“Cuomo has blood on his hands. He really does. There’s no way to sugarcoat this,” the executive said.

Still, Cuomo maintained that nursing homes did not have to accept COVID patients if they could not provide adequate care, saying, ““They don’t have a right to object. That is the rule and that is the regulation, and they have to comply with that. If they can’t do it, we’ll put them in a facility that can do it.”

In a separate briefing, Cuomo responded to accusations that the state had not provided nursing homes with enough PPE, saying, “It’s not our job” and citing a nationwide shortage.

“It’s their primary responsibility like it’s a hospital’s primary responsibility and hospitals ran into problems, nursing homes ran into problems,” Cuomo said. “This is a national story, right? Turn on the national news any given time, and you have people saying ‘We can’t get enough PPE,’ right?”

A spokesman for Cuomo said the allegation that the governor had “blood on his hands” was “disgusting.” The spokeman added that nursing home operators were “trying to deflect from their failures.”

New York Health Commissioner Howard Zucker told the Post, “The regulation is common sense: If you can’t provide adequate care, you can’t have the patient in your facility and that’s your basic fiduciary obligation — I would say, ethical obligation — and it’s also your legal obligation.”

However, the order does not spell out the instructions for facilities that were not equipped to handle COVID patients. The wording of the document says that nursing homes “shall” not deny admission of COVID patients “solely based on a confirmed or suspected diagnosis of COVID-19.”

The debate may hinge upon the word “solely.” An ability to care safely care for Coronavirus patients in addition to other residents could have constituted a reasonable reason to refuse hospital transfers that was not based solely on the diagnosis of COVID-19. While it seems obvious that nursing homes should not accept patients that they could not safely care for, the order does not make that clear or provide an alternative.

A trade association, the AMDA-The Society for Post-Acute and Long-Term Care Medicine blasted the New York policy on March 26, one day after it was announced, calling it, “over-reaching, not consistent with science,
unenforceable, and beyond all, not in the least consistent with patient safety principles.” The group accused New York of “bullying nursing facilities and medical providers to make unsafe decisions.”

The controversy over New York’s treatment of nursing homes comes as there is new information about New York’s early response to the pandemic. The New Yorker ran an article comparing New York’s response to that of Seattle, which was much quicker and followed scientific recommendations. As Seattle closed schools, New York Mayor Bill DeBlasio and Gov. Cuomo minimized the threat, even as health officials sounded the alarm.

There is plenty of blame to go around for the US response to the pandemic. The United States now leads the world in acknowledged Coronavirus cases (although Chinese and Russian numbers are almost certainly underreported) with New York representing nearly a third of American cases and deaths. On a per-capita basis, the US ranks sixth in the number of cases and 10th in deaths.

It is nevertheless tragic that many deaths in New York might have been avoided by a more clearcut policy that allowed nursing homes to turn away patients that would be mixed in with longterm residents. Some blame must be apportioned both to state officials who drafted the policy and nursing home officials who did not raise the red flag earlier.

The problem seems reminiscent of one of the hazardous attitudes identified in aviation as a cause of accidents, the macho mindset that leads to taking unnecessary risks due to misplaced confidence. “Mission-itis,” an unhealthy focus on completing the mission no matter what, is another way of describing what happened. Sometimes it is necessary to refuse to follow an unsafe order. That is what should have happened here.

Originally published on the Resurgent