On Mar. 25, 2020, New York Governor Andrew Cuomo issued an order requiring nursing homes to accept on an expedited basis all new or returning residents with confirmed or presumed COVID-19 who are discharged from the hospital after being diagnosed as medically stable.
The order states:
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.1
NY Governor’s Order Puts Nursing Home Residents and Staff At Greater Risk for COVID-19 Infections
Critics of the Governor’s order have included nursing home staff, families of residents, the nursing home industry, public health experts and other groups arguing that forcing nursing homes to accept residents, who are or may be infected with COVID-19 and still contagious, puts all residents and staff at greater risk.2
The Society for Post-Acute and Long-Term Care Medicine, which represents medical professionals working in nursing homes, stated, “We find the New York state advisory to be over-reaching, not consistent with science, unenforceable, and beyond all, not in the least consistent with patient safety principles.”3
In response to this criticism, Gov. Cuomo stated, “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.4
The Governor warned nursing homes that failure to follow state orders to re-admit residents with COVD-19 and to follow state rules for managing these patients could lead to an investigation by New York state officials and the attorney general, fines and the risk of losing their license to operate a nursing home.5
Nursing homes can’t discriminate against COVID-19 patient but, if the nursing home staff is unable to safely accept patients and comply with state regulations, they have the option of transferring them to other facilities or notifying the Department of Health. However, nursing homes have a “tremendous financial incentive” to take in COVID-19 patients according to Richard Mollot, executive director of the Long Term Care Community Coalition in New York, an advocacy group for residents.6
The recent Order issued by Governor Cuomo is generating concern because the elderly population, especially those with underlying chronic poor health conditions that affect many residents in crowded nursing homes, are at higher risk for COVID-19 complications. In fact, Governor Cuomo previously stated that, “Coronavirus in a nursing home can be like fire in dry grass”7 and that nursing homes are a “feeding frenzy for this virus.”8
In early March, Dr. Anthony Fauci, director of the National Institutes of Health’s National Institute of Allergy and Infectious Diseases, said:
… the risk group is very, very clear. It’s so clear that the overwhelming weight of serious disease and mortality is on those who are elderly and those with a serious comorbidity: heart disease, chronic lung disease, diabetes, obesity, respiratory difficulties.9
Nursing Homes Hit Hard by COVID-19 Infections and Deaths
New York nursing home residents have been especially hard hit by the new coronavirus because it is easily spread and staff have been hard hit due to lack of enough personal protective equipment, such as masks and gloves, and lack of testing kits. Staffing in some nursing homes has been reduced by as much as 50 percent.10
Vulnerable nursing home residents with underlying poor health conditions may not be able to wear masks or wash their hands independently.11 As of Apr. 21, New York state acknowledged that 3,448 nursing home and adult care residents died of COVID-19, which has accounted for 25 percent of all COVD-19 related deaths in New York.12
Prior to Governor Cuomo’s Mar. 25 orders, the Gurwin Jewish Nursing and Rehabilitation Center in Long Island had only one confirmed case of COVID-19. After the directive mandating that nursing homes accept patients infected with or suspected of being infected with COVID-19, the situation drastically changed. As the unit designated for COVID-19 patients quickly filled up, 40 long term residents and 50 staff members came down with the virus, in addition to the 18 recovering patients transferred from the hospital. Since then, 24 residents have died.13
As of May 4, 55 residents at the Cobble Hill Health Center in Brooklyn have died in connection with COVID-19.14 The nursing home’s CEO previously contacted the state Health Department seeking for help with transferring infected patients to another facility citing the lack of staff and equipment, but state officials denied the request after making a judgment that the nursing home had adequate facilities to house the sick patients and met their basic needs under the state orders.15
New York state officials did not disclose the fatality rate at nursing homes and assisted living facilities to the public until a report was released in mid-April. The report includes self-reported data collected from nursing homes with five or more deaths and does not include residents that died in hospitals.16 As of May 3, there have been 2,371 confirmed COVID-19 deaths and 2,588 presumed COVID-19 deaths in New York nursing homes and assisted living facilities.17
Creating Designated COVID-19 Facilities Reduces Spread of Infection
Creating designated COVID-19 facilities and separate units in nursing homes could alleviate some of the burden on nursing homes and assisted care facilities. According to the American Health Care Association:
Sending hospitalized patients who are likely harboring the virus to nursing homes that do not have the appropriate units, equipment and staff to accept COVID-19 patients is a recipe for disaster. Governors and public health officials should be working with nursing homes to create as many segregated units as possible right now.18
When Massachusetts and Connecticut freed up hospital beds by releasing medically stable COVID-19 patients, they were sent to designated facilities to try to contain the virus from spreading to other nursing home residents.19 Currently, New York has no plans to create temporary facilities to house COVID-19 patients when they are released from hospitals.20
Hope for Families of Nursing Home Residents
Even before the recent order, nursing home residents and their families faced unique struggles due to the COVD-19 outbreak. Residents have been isolated in their rooms and prohibited from having visitors.21 Families claimed that they were not being informed if a resident tested positive or if they were even alive.22 There have been allegations that residents are not getting food and medicine,23 and that bodies are piling up with dead patients being left in their beds.24
After receiving numerous complaints over the last couple of months, a New York city public advocate and the Brooklyn Borough President asked the state to make policy changes that would mandate that nursing homes supply personal protection equipment to staff, make video communication available for residents to be in contact with families, and issue random inspections.25
In response, on Apr. 16, 2020, Gov. Cuomo signed an executive order requiring that nursing homes and adult care facilities notify family or next of kin within 24 hours when residents have been diagnosed with COVID-19 or died from the virus.26
Gov. Cuomo and New York City Mayor Bill De Blasio announced further plans to help struggling nursing homes. The state attorney general along with the Department of Health will start an investigation as to whether nursing homes are following all state rules and regulations and those that aren’t may be subject to a fine or losing their license.27
Mayor De Blasio announced that the city government is shipping 10 million pieces of personal protective equipment, such as masks, gowns and gloves, to 169 nursing homes each week that will increase by at least 50 percent, and the number of clinical staff volunteers from the city will be doubled. DeBlasio said, Our city’s nursing homes are home to some of those most at risk for COVID-19. They need our support more than ever, which is why we are stepping in and sending more staff and support to assist those who protect and care for our most vulnerable.28
The New York Attorney General’s office announced that a hotline has been set up to take complaints about nursing home abuse and neglect, failure to follow safety rules, or failure to provide adequate communication with families about COVID-19 case and deaths.29
1 New York Department of Health Advisory: Hospital Discharges and Admissions to Nursing Homes. Mar. 25, 2020.
2 Khimm S. Coronavirus spreads in a New York nursing home forced to take recovering patients. NBC News Apr. 25, 2020
6 Barker K, Harris AJ. ‘Playing Russian Roulette’: Nursing Homes Told to Take the Infected. The New York Times Apr. 24, 2010.
7 Taddeo S, Arnold C. Nursing homes: Linked to 15% of NY coronavirus deaths, facilities brace for impact. Democrat & Chronicle Apr. 3, 2020.
8 See Footnote 6.
9 Goodwin M. Andrew Cuomo’s coronavirus nursing home policy proves tragic. New York Post Apr. 21, 2020.
11 See Footnote 2.
12 See Footnote 9.
13 See Footnote 2.
14 Robinson D, Campbell J. Coronavirus: Dozens of NY nursing homes have clusters of COVID-19 deaths. See the data here. Lohud Apr. 17, 2020
15 Sheehy K. Cuomo doubles down on ordering nursing homes to admit coronavirus patients. New York Post Apr. 26, 2020.
16 See Footnote 14.
17 Counts of Nursing Home and ACF Related Deaths Statewide.
18 See Footnote 2.
19 See Footnote 6.
20 See Footnote 2.
21 See Footnote 7.
22 Homes: Cuomo Pledges Investigation, Surge Of Supplies And Staff On The Way, De Blasio Says. CBS New York Apr. 23, 2020.
24 Coronavirus Deaths: Officials Told ‘Bodies Being Piled Up In Nursing Homes’ As Desperate Families Face Silence. CBS New York Apr. 14, 2020.
26 See Footnote 14.
27 Coronavirus In Nursing Homes: Cuomo Pledges Investigation, Surge Of Supplies And Staff On The Way, De Blasio Says. CBS New York Apr. 23, 2020.