Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage. A reality check

Dr. Howard Zucker, left, commissioner of the New York State Department of Health, listens to Gov. Andrew Cuomo during a press conference

Dr. Howard Zucker, left, commissioner of the New York State Department of Health, listens to Gov. Andrew Cuomo discuss the state's preparedness for the spread of coronavirus during a news conference, Monday, March 2, 2020 in New York.Mark Lennihan | AP Photo

Syracuse, N.Y. – To hear Gov. Andrew Cuomo’s critics tell it, March 25 is a date that will live in infamy.

On that date, Cuomo’s health commissioner, Dr. Howard Zucker, sent a memo directing nursing homes to help free up hospital beds by taking Covid-19 patients into their facilities.

Now many of Cuomo’s detractors say the directive was the reason for New York’s nation-leading tragedy of more than 15,000 nursing home deaths from the coronavirus.

It was not.

Cuomo’s policy was ill-advised, some experts say. And there are still plenty of questions about how the health department supervised nursing homes during the pandemic.

But the simple notion that by sending Covid-19 patients to nursing homes Cuomo flooded them with virus and caused thousands of unnecessary deaths does not hold up.

The evidence thus far indicates that the March 25 memo had a minor impact on nursing home deaths. And even that is hard to pin down.

The coronavirus was mainly brought into nursing homes by employees, many of whom never developed symptoms, said David Grabowski, a health care policy professor at Harvard Medical School.

“Although the mandate was unfortunate, I do not think it was the major driver in nursing home fatalities in the state,’' Grabowski said in an email.

You wouldn’t know that from the superheated accusations aimed at the governor.

“Governor Cuomo’s disastrous March order knowingly sent Covid-positive patients into nursing homes, which led to the deaths of thousands of the state’s parents and grandparents,’' said U.S. Rep. Tom Reed, a Republican who is considering a run for governor.

In a Feb. 18 conference call with reporters, Reed blamed “Cuomo’s death order” for every nursing home fatality in the state.

“Fifteen thousand of our residents of New York were killed as a result of the Covid-19 order back in March,’' he said.

Cuomo brought some of this hyperbole on himself. The March 25 directive to nursing homes was delivered in his typical top-down, heavy-handed style. And for months his administration refused to provide realistic fatality data for nursing homes, sparking outrage and making it impossible to evaluate the policy in real time.

But the reality that Cuomo underreported thousands of nursing home deaths has too often blended with an unsupported assumption that his controversial March 25 directive caused those deaths.

Democratic Assemblyman Ron Kim, for example, said Cuomo’s order led to “the spread of the disease among New York’s most vulnerable population. And then, to cover his tracks, the governor may have obstructed justice.”

Most evidence indicates the March 25 directive played a minor role in spreading the disease. Even The Empire Center for Public Policy, one of Cuomo’s chief critics on the issue, said the March policy “was not the sole or primary cause of the heavy death toll in nursing homes.’'

Cuomo is in trouble, including over recent accusations of sexual harassment. His multiple crises have attracted national attention. Amid the furor, it may be too easy to gloss over how much we still don’t know about the governor’s alleged “death order.”

Further investigation is warranted. What follows is a look at what we know so far.

1. Sending Covid patients to nursing homes was not the major factor in spreading the virus.

On March 25, faced with a potentially disastrous shortage of hospital beds, Zucker directed nursing homes to help by admitting medically stable hospital patients who had Covid-19.

The policy was reversed May 10. After that, hospital patients had to test negative for coronavirus before they could be admitted to nursing homes.

Zucker and Cuomo

Dr. Howard Zucker, state health commissioner, foreground left, and Gov. Andrew Cuomo speak during coronavirus briefing March 4 at the State Capitol in Albany.(Mike Groll/Office of Gov. Andrew M. Cuomo)

In the six weeks before the guidance changed, nursing homes took in more than 6,300 Covid-positive patients who had not previously been in their facilities. Another 2,700 residents who initially got sick in nursing homes were returned to those facilities after being treated for Covid-19 at a hospital.

That sounded like a recipe for disaster, given the vulnerability of frail nursing home residents.

But the coronavirus had more of a head start than anybody knew at the time. It was already spreading through most of the nursing homes in the hardest-hit areas.

The strongest indication that Cuomo’s policy may have increased the death toll in nursing homes comes from the Empire Center, the conservative think tank.

In an analysis of limited data on hospital discharges, the Empire Center said nursing homes that accepted Covid hospital patients were more likely, on average, to have Covid deaths.

Statistically, their calculations indicated that “several hundred” to “possibly more than 1,000” deaths might be attributed to hospital discharges spurred by the March 25 memo. Or they might not.

“It’s important to be cautious about reading too much into it,’' said Bill Hammond, senior fellow for health policy at the Empire Center. “First of all, correlation does not equal causation. There are confounding factors that could be clouding the situation.’'

Here is one important caveat: In the New York City area, where the vast majority of hospital discharges and nursing home deaths occurred, the data showed no connection between the two, the Empire Center concluded.

That’s huge.

Downstate areas — New York City, Long Island and the lower Hudson Valley — accounted for 95% of the hospital patients sent to nursing homes while the March 25 guidance was in effect, Hammond said. Those areas accounted for 82% of the nursing home deaths during the period.

Hammond speculated that the coronavirus was already spreading so rampantly Downstate that admitting hospital patients to nursing homes made no difference.

Cuomo’s health department agreed.

Of the 310 nursing homes that accepted hospital patients under the March 25 guidance, 304 of them – 98% — told state officials in a survey they already had confirmed or suspected cases of Covid-19 before hospital patients were admitted, according to the health department.

At the time, the virus was especially widespread in Downstate nursing homes, said James Clyne, president of LeadingAge New York, a group that represents nonprofit nursing homes.

“They all had Covid in their buildings,’' Clyne said. “Spread of it was not from discharged hospital residents. It simply wasn’t.”

In Upstate areas not yet saturated with the virus, sending Covid-19 patients to nursing homes may have increased transmission of the virus, Hammond said.

John Bacheller, a blogger and retired state policy analyst, reviewed the Empire Center data and came to similar conclusions: The March 25 guidance had no effect on Downstate deaths.

Bacheller’s review of the data produced a smaller estimate of the Upstate impact: The state’s policy contributed to between 27 and 165 of the 966 deaths of Upstate nursing home residents, he estimated.

But that’s only half the picture, he said. It’s hard to estimate the positive effect of the policy in hospitals.

“Although people probably did die in nursing homes because of this, you don’t know how many people would have died because they couldn’t get into hospitals,” Bacheller said.

It was not until late fall – long after the March 25 memo was moot – that nursing homes in Central New York and other Upstate area suffered most of their fatalities. As the virus spread through communities, nursing homes suffered catastrophic losses.

Zucker’s order was a minor factor in the tragedy.

2. Other states also sent Covid-19 patients to nursing homes.

The potential for the coronavirus to overwhelm hospitals was real. In early March, the federal agency that regulates nursing homes said they should be part of the solution.

The Centers for Medicare and Medicaid Services issued guidance March 13 saying nursing homes could accept Covid-19 patients from hospitals if the nursing homes were equipped to properly care for them.

Zucker’s March 25 memo stated the case more urgently and left out any reference to conditioning the transfer on whether the nursing home was adequately prepared. In addition, Cuomo signed legislation around that time granting health-care facilities immunity from lawsuits related to Covid-19, further encouraging them to take patients.

That combination made some queasy. It seemed to open the door for nursing homes to admit patients without enough concern for safety.

New York’s policy was a mistake, but one shared by several states, said Grabowski, the Harvard Medical School expert. The March 25 memo also was consistent with guidance from the federal Centers for Disease Control at the time, he said.

The March 25 mandate erred because while certain nursing homes had the capacity to care for Covid patients safely, “many did not,’' Grabowski said.

The memo “basically pushed the problem from overcrowded hospitals to under-resourced nursing homes,’' he said.

New Jersey, Pennsylvania and Michigan adopted similar policies. Other states drafted proposals like New York’s but softened them after pushback. In many states, the push-and-pull between hospitals and nursing homes caused friction.

“In the early part of the pandemic, I am not certain I would suggest any of the states did a great job,’' Grabowski said.

A better solution would have been to create standalone, specialized facilities where Covid-19 patients could recuperate after leaving the hospital, Grabowski said.

That would improve care and reduce the risk of transmitting the virus to uninfected patients.

Assembly Minority Leader Will Barclay, R-Pulaski, echoed the sentiments of many critics who questioned sending Covid patients to nursing homes where they could infect others.

How, he said, could that not make things worse? After all, it was Cuomo who said the virus could sweep through nursing homes like “fire through dry grass.”

“If you’re putting Covid-infected patients into a nursing home … certainly that’s not going to help the situation,’' Barclay said. “And I would suspect that it makes it worse. I think that’s why there’s so much controversy around this. That’s not hard to think that that’s going to be the case, right?”

Letitia James

New York State Attorney General Letitia James issued a report Jan. 28 criticizing the health department for under-reporting deaths from nursing homes.AP

Hammond said the Empire Center’s study was predicated on the same idea. Even if hospital patients didn’t introduce the virus when they moved to nursing homes, they added to the load.

“It’s just true that it’s harder to handle 10 infected patients than it is to handle three,’' Hammond said. “So the more you have, the greater the risk.”

How much the admission of hospital patients added to virus transmission in nursing homes is impossible to know without more detailed analysis, Grabowski said. Most cases were spread by staff, but a smaller share probably stemmed from hospital patients, and those likely caused some deaths, he said.

Other factors, including staff turnover and nursing home staffing levels, also were critically important.

In her Jan. 28 report on nursing home deaths, state Attorney General Letitia James said the March 25 policy “may have put residents at increased risk of harm in some facilities.’' But James’s investigation showed that nursing home staffing played a more predictable role.

The AG discovered numerous problems at nursing homes that increased the risk to residents, including a lack of personal protective equipment, inadequate testing and poor compliance with infection control rules.

Most of the problems were exacerbated by low staffing levels. Nursing homes with smaller staff-to-resident ratios consistently had more Covid deaths, James reported.

(Update: The Empire Center today issued a report that questioned the AG’s findings on staffing levels. Using the more complete fatality data recently released by the state, The Empire Center found no clear correlation between staffing levels and deaths.)

3. Most Onondaga County nursing homes were unaffected by the memo.

Eight nursing homes in Onondaga County had residents die of Covid-19 while the March 25 order was in effect. Only two took in Covid-19 patients from hospitals that had not previously lived at their facilities.

That suggests that the virus was already spreading through at least some local nursing homes without help from hospital discharges.

Loretto Health and Rehabilitation Center, the largest nursing home in Syracuse with 583 beds, accepted 20 new residents from hospitals, state records show.

Loretto also readmitted one resident who had gone to the hospital after contracting Covid-19 at the nursing home.

Bishop Rehabilitation and Nursing Center, which has 440 beds, took in eight new Covid-positive patients from hospitals, state records show. Bishop also readmitted 10 residents who had gone to the hospital and recovered.

(Two other local homes, Central Park and Van Duyn, readmitted residents who returned after being treated for Covid-19 at hospitals.)

During the period following the March 25 order, and for 25 days after it ended, there were 115 Covid-19 deaths involving residents at eight Onondaga County nursing homes. They accounted for 77% of all county deaths during the period.

Bishop and Loretto – the two facilities that took in hospital patients – accounted for 46 deaths.

Both nursing homes had established separate units in their buildings where Covid-19 patients were isolated with negative-pressure ventilation to prevent the virus from spreading.

Loretto staffed its coronavirus unit with employees who did not work elsewhere in the facility, said Julie Sheedy, a Loretto official.

Thanks to the precautions, Sheedy said, she does not believe the hospital transfers spread the virus at Loretto.

“We were already well-prepared and had an environment to care for our residents safely, so we did not see a significant spread in our facility,’' she said.

Loretto had four coronavirus deaths during the period.

Bishop had 42 deaths, the most among the eight facilities. But Bishop also actively worked with hospitals to admit Covid-19 patients at its isolation unit, according to previous news reporting.

Many of the patients transferred to Bishop were not expected to survive, making the facility something of a Covid hospice. That may partially explain its high death count.

In its reports to federal regulators, Bishop reported taking in 40 hospital patients as of May 24. It’s not clear why that number is more than double what state records show. Facility officials declined to comment for this report.

“We are in the business of patient care, not politics, and therefore have no comment on this,” said Dawn Harsch, a company spokesperson.

Onondaga County suffered most of its nursing home deaths long after the March 25 guidance was moot.

Two out of every three nursing home deaths in the county occurred after the state changed its policy and required hospital patients to test negative for Covid-19 before going to a nursing home.

Those deaths occurred even though, since early May, the state has required frequent testing of nursing home workers.

In December, when a surge of Covid-19 hit Central New York, Loretto converted an entire building to a Covid-only facility to relieve pressure on local hospital capacity. It’s one of 19 such facilities in the state. More than 230 patients have been treated there, Sheedy said.

4. Cuomo brought the skepticism on himself.

The March 25 memo was issued during a chaotic, scary time as the pandemic was killing hundreds of people a day in New York. Cuomo and Zucker focused on the potential that hospitals could quickly run out of space to treat the most serious cases.

At the time, the state projected a need for up to 110,000 hospital beds. It had 53,000.

“During this global health emergency, all NHs (nursing homes) must comply with the expedited receipt of residents returning from hospitals to NHs,’' the March 25 memo said.

“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.’'

On May 10, the policy was abruptly reversed. Suddenly, no hospital patient with Covid-19 could be discharged to a nursing home without first testing negative.

Fahey building

The Fahey building at Loretto (foreground) was converted in December 2020 to a Covid-only facility to take patients from hospitals.Brian Phillips

The top-down governing style of the Cuomo administration is at least partly to blame for the intense blowback his policy is taking.

The March 25 memo took nursing homes by surprise, said Christopher Laxton, executive director of a national organization representing nursing home physicians. Laxton and other critics say New York officials should have sought input from nursing homes before issuing the directive.

Instead, Laxton’s group, AMDA-The Society for Post-Acute and Long-Term-Care Medicine, attacked the directive after it came out, saying it was “not in the least consistent with patient safety principles.’'

The health department put out the March 25 memo at a time when it was still struggling to get a grasp on how many residents were dying in nursing homes.

Nursing home deaths peaked April 8, according to a health department report in July. But it wasn’t until a week later that the health department asked nursing homes to start reporting daily how many residents died of Covid-19 in their facilities.

“The March 25 directive was because the governor was focused on hospitals and frankly didn’t give a crap about nursing homes,’' said Richard Mollot, executive director of the Long Term Care Community Coalition, which advocates for nursing home residents.

Mollot’s group did not support the policy. And Cuomo’s resistance to providing complete fatality data showed his ongoing disregard for nursing homes, he said.

But it’s not clear from the data whether the March 25 policy increased the death toll, he said.

“It’s hard to say,’' Mollot said. ’'I don’t think it was a good idea, but it’s hard to say.’'

State officials have repeatedly said the March 25 directive did not force nursing homes to accept Covid-19 patients. Under existing state law, it was incumbent on nursing homes to refuse Covid patients from hospitals if they were not equipped to care for them safely, they say.

Laxton said nursing homes saw it differently.

“The fact is, the nursing homes took that order as a mandate, and they started accepting patients,’' he said.

Sheedy, of the Loretto nursing home, agreed.

“We were required to take them,’' she said.

After the state health department took flak over the March 25 policy, it produced a report in July exonerating itself.

Among other things, the department’s report said most Covid patients discharged from hospitals were no longer infectious, based on the average length of hospital stays. The department also said that the peak number of nursing home deaths preceded the peak number of patients admitted from hospitals.

That in-house report met with skepticism. Some states hit hard by nursing home deaths, including Connecticut and New Jersey, hired outside consultants to review their actions.

In the end, it was the Cuomo team’s unwillingness to answer longstanding demands for fatality data that caused the greatest outrage. When the numbers were finally forced out, concerns over the March 25 memo escalated and went national.

If that leads to an investigation of nursing home deaths and how to prevent them, it could yield positive results, say advocates for residents.

But several advocates said the opportunity will be lost if the focus remains solely on the March 25 memo.

“I hope that perhaps we can channel some of this energy around the Cuomo scandal into finally improving things for residents,’' said Nina Kohn, a Syracuse University law professor who specializes in the civil rights of older adults. “But we can’t let all of our focus be about who to blame for what. We really need to be thinking about how do we solve the suffering.”

Do you have a news tip or a story idea? Contact reporter Tim Knauss of syracuse.com/The Post-Standard: email | Twitter | | 315-470-3023

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