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Politicians Scramble To Explain Deadly Decisions With COVID-19 and Nursing Homes

Updated: May 24

In our April 27 blog, we wrote about the ongoing crisis in New York State as the result of the executive decision made by Governor Andrew Cuomo sending COVID-19 positive residents back to nursing facilities. The order, issued March 29, required that all nursing homes admit or re-admit “medically stable” residents with coronavirus even though multiple medical and nursing home oversite groups warned that it would cost more lives. The rationale was to "free up hospital beds" for critically ill patients.


Governor Cuomo getting COVID-19 test

The American Health Care Association immediately issued a statement saying that the order put “frail and older adults who reside in nursing homes at risk”, alleging that this would “result in more people going to the hospital and more deaths.” This group was not alone in their concern.


Richard Mollett, executive director of the Long-Term Care Community Coalition in New York stated, “To have a mandate that nursing homes accept COVID-19 patients has put many people in grave danger. We know facilities have a lot of infection-control problems, we know that facilities have low staff, so what do you think was going to happen when the staff were further strained in caring for these patients?”


When hit with this pushback, the Health Commissioner of the state, Howard Zucker, issued an advisory warning nursing homes that they could lose their license and/or face fines if they did not comply. A not so veiled threat that ended up making things worse, much worse.


Did New York Downplay the Numbers?

Now, troubling accounts have begun to surface as a result of the order signed by the governor and enforced by health authorities. According to media reports, “New York knowingly omitted an unknown number of coronavirus deaths in recent reports regarding residents of nursing home and adult care facilities.” Newspapers and online stories state that in early May, the New York Department of Health “began omitting long-term care residents who died of coronavirus in hospitals” after contracting the disease inside the facilities. Even with downplaying these numbers, New York still led the nation in nursing home and adult care facility deaths.


Transporting "stable" senior back to nursing home

Critics now say that Cuomo and the State Department of Health quietly changed the reporting requirements on or around May 3 to include only those elderly who died while physically present within the facility rather than being moved to a hospital for care where they eventually died. When pressed on this, state officials stated that the change was made “in order to maintain consistency and reliability in the data presented, and to avoid any potential for double counting.” Others felt this was done in order to cut down the death count in long term care facilities.


Of the nine states with the largest coronavirus outbreaks in senior care facilities, New York was the only state where the nursing home residents who died in hospitals after being infected in the facilities were not counted as deaths in the nursing homes themselves. Spokespersons for the Health departments in New Jersey, Pennsylvania, Illinois, Maryland, and Massachusetts told the online news organization “The Daily Caller” that those who died in hospitals from nursing homes were counted in the deaths from the senior care homes.


Another concern expressed by multiple news outlets was the fact that New York stopped reporting the deaths of long-term care residents who died in hospitals the same day it reported that there were “1700 deaths” that were classified as unreported rather than from COVID-19.


COVID-19 Positive Staff Allowed to Work

Then came another disturbing report from the New York Post in early May that stated the New York health authorities allowed nurses who were infected by COVID-19 to work in nursing homes. Specifically, it was reported that state officials allowed “nurses who tested positive for the novel coronavirus to volunteer at Hornell Gardens nursing home in upstate New York…despite protests from local officials in Steuben County."


Infected staff allowed to work

The Post further reported that Jack Wheeler, the county’s top official, stated that the decision-making process was done at the state level, leaving local authorities out of the loop. The Post stated that in a memo obtained by the newspaper, Wheeler wrote: “We learned that DOH [Department of Health] will allow positive-asymptomatic staff to work with COVID-positive patients only. We raise our concerns and objections.”


Although the nurses were only supposed to work only with residents diagnosed with the virus, the disease ended up spreading rapidly through the facility, killing 15 residents. The state said "this decision had no effect on the deaths in the facility", the records showed that just seven deaths occurred across the county and excluded the numbers from Hornell Gardens.


New Jersey Had Similar Order

On March 31, following the directive from New York, the New Jersey Department of Health told the state’s long-term care facilities that they could not deny admission or re-admission based on a confirmed diagnosis of COVID-19.


New Jersey authorities, like those in New York, reported that the reason for doing this was to keep the hospital numbers down to make room for more critically ill patients. The state also ordered nursing homes to put restrictions in place to prevent the spread of COVID-19, such as putting returning residents on separate floors, to avoid infecting others, but this did not seem to work.


State authorities defended this decision, saying that besides keeping hospital beds empty, there were concerns regarding a practice known as “dumping”, where nursing home residents are sent to hospitals and the home refuses to accept them back. Nursing home operators argued that this was not the case and they were trying to protect others in the facility. Again, the results were predictable.


Before the March 31 order, there were fewer than 1000 cases in New Jersey long term care facilities and other elder care programs. Less than two weeks later, the number ballooned to more than 5,200 forcing the state to issue another directive stating that re-admission of suspected COVID-19 patients would occur only if they could be placed in isolation. But as many say, that was too little too late.


Pennsylvania's Twisted Story

Pennsylvania’s long-term care operators faced similar issues – but with an infuriating twist. In March, Governor Tom Wolf and the Commonwealth’s Health Secretary, Rachel Levine, ordered long-term care facilities to continue to accept coronavirus patients who had been discharged from hospitals but un­able to return to their homes. According to records, about 70% of the deaths in Pennsylvania were in nursing homes.


And here's that twist -- Levine moved her 95-year-old mother out of a personal care home after she gave the order. When confronted by the media, Levine claimed that she had nothing to do with that decision.

Levine moved her mother out of long term care

The ABC affiliate, WHTM-27 in Harrisburg, questioned Levine as to why she moved her mother out of long-term care if it was such a safe place to be and the order she and the governor gave was medically sound.


“My mother requested, and my sister and I as her children complied, to move her to another location during the COVID-19 outbreak…my mother is 95 years old. She is very intelligent and more than competent to make her own decisions,” Levine stated. She also faced mounting criticism from state lawmakers, and to deflect that, argued that she is “working to ensure the health and safety of all state residents.”


Meanwhile, critics have said that Levine’s assurances ring hollow given the fact that It’s been hard to assess the effectiveness of the state’s response or which nursing homes are facing the biggest crises because the Wolf administration had refused to release a facility-by-facility list, even as neighboring states — including New York, New Jersey, Maryland, and Ohio — had done so.


In the interim, devastating stories have begun to emerge from all areas of the state. This from the Pittsburgh Gazette: “Nurses at the Gardens at West Shore in Cumberland County told Spotlight PA they are testing positive for the coronavirus and being told to “take Tylenol and come back.” They were instructed not to test residents with symptoms of the virus, they said, and were forbidden from telling families and other residents about cases. Sick residents that had been moved to a separate area were later moved back among the general population. And nurses said they are reusing each other’s protective gear, and often wear the same gowns between caring for well and sick residents.”


The Gardens at West Shore

“I’ve never seen this in my life, in my 30 years of nursing,” said one nurse at Gardens at West Shore, who is recovering from the coronavirus at home and asked not to be named for fear of retaliation. “Everybody was scared. … Our residents didn’t know what was going on. We couldn’t really tell them. People are crying because they don’t want to lose their job.”


While it is easy to point fingers at the nursing facilities, many are saying the blame resides squarely with the Wolf Administration and its lack of preparedness even with the knowledge that COVID would affect seniors disproportionately.


Once again, Levine touted a state contract with a company called ECRI, a patient-centered safety and health-care research institute headquartered in Plymouth Meeting, Pennsylvania, but refused to supply any salient details as to what that company was actually contracted to do.


In an interview with Spotlight Pennsylvania, management of ECRI said it was only conducting phone consultations, and that the company had offered to send iPhones to facilities to do video consultations but was told that the state health department preferred phone calls and, this certainly was not effective.


“Some facilities are so overwhelmed that people don’t pick up the phone,” said Karen Schoelles, ECRI’s vice president of clinical excellence and safety, and head of the team working for the state. At others, staff answer the phone in tears, traumatized from seeing coworkers get sick and patients die daily.


As of April 29, ECRI had consulted with 76 facilities or about 15% of all long-term care facilities with cases reported to the state. Providers criticized that number as too low when hundreds of facilities are vying for support. So while the Governor has called individuals "cowards" for wanting to defy his stay at home order and go back to work, he is not so outspoken or eager to call names when it comes to the death toll in the state's nursing homes, an issue that lands at the steps of his office.


As for Levine, she is facing calls to resign over the department’s handling of the coronavirus outbreak and the state is facing a class-action suit that was filed on April 26, 2020, that claims the Health Department ceased inspecting long term care facilities that are now viral hot zones.


The Minnesota Problem

In Minnesota, Governor Tim Walz and his Commissioner of Health Jan Malcolm continue to send COVID 19 residents back into nursing homes despite seeing the outcomes in states like New York, New Jersey, and Pennsylvania. Rather than back peddle on this policy, they instituted a "five-point battle plan", in their words, "to address the COVID-19 challenges for long term care facilities."


Missing from that plan, however, was halting the return COVID-19 positive residents back into the residences. The results, as you can imagine, have been predictable. In the two weeks since Governor Walz announced his plan, the percentage of coronavirus deaths in Minnesota from nursing homes increased from 80.1 percent (407 out of 508) to 81.9 percent (663 out of 809). And still, no change has been made. As of today, no state has a higher percentage of COVID-19 deaths from nursing home residents than Minnesota and the governor continues to enforce his policy.


A Call for Prosecutions?

This week in New York, Cuomo was pressed by reporters for answers to what many saw as negligence in placing COVID-19 patients back into the long term care facilities which ultimately became boiling Petri dishes for the virus. When asked if someone should take responsibility for the deaths or even face charges, Cuomo answered that “nobody” should be prosecuted for his state’s fatalities caused by the coronavirus, including deaths in nursing homes, softening his and his administration’s tough stance against nursing homes just a month and a half earlier when he threatened them with a loss of license if they did not take back those with corona.


Cuomo gives answers on MSNBC - sort of.

Appearing on MSNBC, Cuomo tried to dismiss growing accusations that his administration failed to protect nursing home residents during the coronavirus pandemic, stating that, “We did everything we could” and did not skip any “precautions". "Despite whatever you do, because with all our progress as a society, we can’t keep everyone alive,” he stated.


The massive number of dead prompted Cuomo earlier this week to issue a series of new regulations, including requiring staff at all nursing homes to take two virus tests per week. He also said that hospitals can no longer send coronavirus patients to nursing homes. “We’re just not going to send a person who is positive to a nursing home after a hospital visit. Period. If there’s an issue, the resident must be referred to the department of health which will find alternative care,” Cuomo said last week.


When confronted with this apparent reversal from his late March order, an aide to Cuomo claimed the announcement was not a reversal, insisting instead it was a new policy based on the increased availability of testing and more hospital space.


A Predictable Problem

So here's the issue, weeks before the virus hit New York with all its fury, those who worked in the senior care field knew that a problem was coming. Nursing home operators appealed for more supplies and sought guidance from the state as to how to prepare for this virus. The state offered little or no guidance. In fact, a full six weeks before Cuomo shut down the state on March 20, warnings had been posted on the federal level that nursing homes were extremely vulnerable to this virus. But to be fair to the governor, his state was not alone in this since federal guidance was also lacking.


Attorney RJ Connelly III

In January, Attorney Connelly called a meeting with the staff at his office and reviewed the data that he was receiving and warned of a major problem for seniors in long term care and the community. As a result of that meeting, we did a blog on January 25, 2020 where we stated that the elderly were especially vulnerable to what appeared to be a crisis looming on the horizon. So, this should not have been a shock to the governors in multiple states that chose to send COVID-19 residents back into the poorly supported senior care residences that the outcome of their decisions would prove to be devastating.


"We began to see the problems as early as late 2019 when stories began trickling out of China about the virus and the toll that was mounting among the elderly and especially those with compromised respiratory systems," Connelly said. "So we had a meeting of the staff and discussed ways we could support our seniors and what steps we could take should the problem turn into what it has turned into. There was plenty of warning on this one."


On the flip side of this problem, at least one state seemed to get it right. In Florida, its Governor, Ron DeSantis, issued an order early in the pandemic prohibiting the return of COVID-19 hospital patients back to the nursing homes until they were no longer infectious. The difference is both stark and heartbreaking - Florida lost only 3.5 nursing home residents per 100,000 while New York lost 27 per 100,000, a horrific eight times more.


Relatives Want Answers in New York

Many relatives of nursing home residents who died have not accepted Cuomo's explanations, or as they see, excuses. One of them is a nurse who stated that her mother’s death was the result of the entire system and those who regulate it.


Kathleen Cole stated that her 89-year-old mother, Delores McGoldrick, died April 17 after contracting COVID-19 at Ferncliff Nursing Home in Rhinebeck, New York. McGoldrick was infected shortly after a fellow nursing home resident was readmitted from a hospital in late March. Cole said she only learned of the true situation after her mother was transferred to a local hospital’s emergency room on April 14.

Kathleen Cole holding a photo of her late mother

“My mother’s hands were blue — it wasn’t like a dusky shade blue, her nail beds were blue, her feet were blue, she was ice cold,” Cole said, recalling the scene at the hospital.


“She never opened her eyes for anybody to speak with, and she was just in a horrible, horrible state,” she said. “I know that didn’t occur over the course of several hours; that was something that was accumulating over time.”


"When this begins to wind down," said Connelly, "It's important that we don't scapegoat the nursing homes and assisted living programs. The administrators and staff of these senior care residences have given their all in this battle. It's the decision-makers above them that have some difficult questions to answer."


Very soon, answers will indeed need to be provided. Predictably, politicians are starting to run for cover already and the stories being proffered by friendly media allies is that we should not look at the past but that we must "learn from these mistakes and prepare for the future". "Gird for the worst" will be the new phrase that will replace "We're all in this together". What doesn't make sense is that there were plenty of red flags before COVID-19 even hit our shores.


In fact, on Jan. 21, 2020, the day the first COVID-19 case in this country was confirmed, Anthony Fauci, from the CDC, appeared on conservative Newsmax TV. Host Greg Kelly asked Fauci this question, “We don’t have to worry about this one, right?”


“Obviously, you need to take it seriously and do the kind of things the CDC and the Department of Homeland Security is doing. But this is not a major threat to the people of the United States and this is not something that the citizens of the United States right now should be worried about,” Fauci claimed. But what exactly were they doing?


The bottom line, we should have done more to prepare and support the senior care facilities with equipment and training. Now this question, are we preparing for the mental health issues and the neglected physical health issues that will come in the aftermath of this quarantine? Once again, the red flags are there and we have had time to prepare. We'll see if any lessons have been learned.


MEMORIAL DAY MONDAY, MAY 25, 2020


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© Connelly Law Offices, Ltd.  2020