Introduction and Executive Summary
Governor Cuomo and his administration neither caused nor obscured fatalities of New York Nursing Home residents. The tragic deaths of senior citizens in care facilities and the pain of grieving families have been used as a political weapon by his adversaries.
Covid-19 hit New York harder, faster, and with a lot less time to react than other states. Information and guidance were sparse and constantly changing as the situation evolved. Life-or-death decisions had to be made under immense time pressure and with limited knowledge. One of them was the NYSDOH March 25th Advisory, which allowed hospital patients to return to nursing homes instead of occupying hospital beds. Nobody knows how many more people would have died if hospitals had not discharged patients and had run out of beds. More HERE.
The March 25 NYSDOH advisory was consistent with federal guidelines which stated that hospitals could discharge patients based on clinical need for hospitalization, not Covid-status, and without a test. Federal guideline said that NHs should accept patients as they would usually do, and that patients who still needed precautions should be discharged to NHs who could follow protocols If the NH could not follow protocols, they were to inform the state. NYSDOH advisory is based on these CDC and CMS guidelines and never suggested NHs should accept patients they could not care for as required. At least a dozen states issued similar guidance. More HERE.
The advisory was issued against the backdrop of several infection control directives. In addition to existing federal and state laws and guidelines, CMS, CDC and NYS issued multiple Covid-related directives before and after the March 25 advisory. These include instructions and requirements, such as preparing for PPE shortage, staff screening and quarantine, detailed procedures for suspected and confirmed cases, for potential exposures, return-to-work protocols, and reviewing and enforcing policies with all staff. The advisory had to be interpreted and applied within the context of these other documents. They are explained at the end of this post with links to the original documents HERE.
Nursing Homes never had to admit Covid-patients. NYS law states that NHs may only admit patients if they can provide adequate care for them, which includes adhering to infection control and prevention protocols. In order to provide alternatives if NHs could not admit a patient, NYS had secured beds and created facilities specifically for infected NH residents. NHs admitted patients at their own discretion and under obligation to follow guidelines and policies. More HERE.
The NYSDOH March 25 Advisory had no or little impact on NH deaths. Statistical analysis shows that the advisory had little or no significant impact on fatalities in nursing homes. This was repeatedly confirmed by every single investigation and analysis including the Office of NYS AG, the Assembly Judiciary Committee, (they did not publicize the findings on the news although they are in the reports), and the Empire Center for Public Policy. More HERE.
Infected staff, visitors, non-compliance, lack of PPE, and testing led to high fatalities. The investigation by the NYS AG identified as driving factors for the introduction and spread of Covid-19: infected staff, visitors, lack of PPE and testing, and – exacerbating these problems – lack of compliance with infection control protocols and requirements in nursing homes. Multiple federal and state guidelines were issued before and after the 3/25 advisory, which were not followed by NHs. The NYS AG Office found that it was the implementation of some federal and state guidance by NHs that may have led to an increase of fatalities – not the guidance per se, but how it was executed. DOH’s data analysis shows clearly that infected staff (unknowingly, early in the pandemic) introduced the virus to NHs. This finding was re-confirmed by a second analysis with updated numbers and by the Assembly Judiciary Committee. More HERE.
New York State lost less lives in Nursing Homes than many other States. New York State ranks “only” 31st in NH deaths / capita even though it has the highest number of NH residents/population. Measures were taken by the Cuomo admin to improve the situation in nursing homes and saved lives, such as inspections, on-site testing, help with staffing. Facilities were provided to accommodate NH residents that nursing homes could not admit if they couldn’t properly take care of them and follow all infection control protocols. More HERE.
NYSDOH did not hide or undercount “nursing home deaths” but published data that was verified, reliable, clear and useful. Reasons for actual underreporting NH deaths are manifold: Inconsistent reporting by facilities (e.g. 7 reported to DOH, and later 31 to OAG during investigation), mistakes were also made by NYSDOH (e.g. reported 1 confirmed death for a facility which had reported 11 confirmed and 1 suspected). More HERE.
Governor Cuomo did not give immunity to bad-acting nursing home executives. The immunity shielded all healthcare workers who had to make difficult decisions and lacked resources and supplies in an unprecedented situation so they could do their work without additional fear. It did not cover willful or criminal misconduct or gross negligence. More HERE.
The New York “Nursing Home Scandal” was made up and blown up by Trump and his supporters (Michael Caputo, Jeffrey Bossert Clark, Janice Dean) and left-wing New York legislators who wanted to get rid of Cuomo (led by Ron Kim who had previous personal grudge) and a MAGA organization called “Voices for Seniors” – all working neatly together. More HERE.
Sources are listed towards the end of this post HERE.
Covid-19 in New York
In March NY was facing staggering and rising cases of COVID cases and fatalities as a result from uncontrolled, invisible spread earlier than realized. There was not enough PPE, ventilators, hospital and ICU beds, and staff. Hospitals (as well as morgues and funeral homes) were overwhelmed, and forecasts predicted a disastrous escalation of the situation.
Many of the decisions regarding the pandemic and related policies were made in the context of a once-in-a-century event that was fast-moving and presented significant challenges.
NYS had to expand hospital capacity to deal with the forecasted surge of patients. At the time, the state projected a need for up to 110,000 hospital beds. It had 53,000. Discharging recovering COVID-19 patients once they were medically stable to free up hospital beds in order to care for patients in need of care was essential.
As the OAG report points out, the March 25 Advisory was issued at a time when many hospitals reported extended stays of patients waiting for test results to be admitted to NHs, which strained bed capacity when waves of new patients were expected:
To the extent New York hospitals had capacity concerns due to the pandemic, the March 25 guidance would have been helpful to communities where those facilities were experiencing longer COVID-19 patient stays due to delays in receiving testing results, and were at or exceeding acute care capacity while they simultaneously were anticipating more new patients in need of acute care. […] Many hospitals in areas of high COVID-19 infection rates in some other states reported that “post-acute facilities were requiring negative COVID-19 tests before accepting patients discharged from hospitals.” This practice meant that some patients who no longer required acute care were occupying valuable hospital beds while waiting to be discharged”. […] “Hospitals reported that as “patient stays were extended while awaiting test results, this strained bed availability, [PPE], supplies, and staffing.
The March 25 Advisory was consistent with Federal Guidelines
The 3/25 NYSDOH advisory was based on and accordance with the CDC 3/23 guideline. As per CDC patients could be discharged without a test and without meeting any criteria except no clinical need to be hospitalized. NHs could not deny those patients ONLY because of being Covid-positive. They were never forced to admit patients. They could and should have informed the hospital if they could not take the patient because they were not able to follow precautions and contacted their Office of Emergency Management. The advisory in accordance with CDC emphases that hospital discharge is based on determination of clinical need, not Covid status and need for precautions, while making clear that NHs are responsible to follow precautions as well as communicating lack of ability to do so. Patients discharged from hospitals because they didn’t need to be hospitalized had to go home, which sadly for many seniors is a facility.
“The March 25 guidance was consistent with the CMS guidance on March 4 that said nursing homes should accept residents they would have normally admitted, even if from a hospital with COVID-19, and that patients from hospitals can be transferred to nursing homes if the nursing homes have the ability to adhere to infection prevention and control recommendations. It was also consistent with CDC Published Transmission-Based Precaution (T-BP) guidance, which was referred to in CMS’s March 4 guidance, and which stated that if T-BP were still required for a patient being discharged to a nursing home, the patient should go to a facility with an ability to adhere to infection prevention and control recommendations for the care of residents with COVID-19.”
Here are the three relevant guidelines (the March 4 guidance mentioned by the OAG was revised on March 13, changes are in red in the linked document):
Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes (CMS, Revised March 13, 2020)
CMS issues a guidance regarding health checks, cleaning, Personal Protective Equipment, Visits etc. The same guideline states: “A nursing home can accept a resident diagnosed with COVID-19 and still under Transmission Based Precautions for COVID-19 as long as the facility can follow CDC guidance for Transmission-Based Precautions.” “Nursing homes should admit any individuals that they would normally admit to their facility“.
Full document: https://www.cms.gov/files/document/3-13-2020-nursing-home-guidance-covid-19.pdf
Guidance on Discontinuation of Transmission-Based Precautions and Disposition of Patients with COVID-19 in Healthcare Settings (CDC, March 23, 2020)
Regarding the disposition of patients with Covid-19 it states: “Patients with COVID-19 can be discharged from a healthcare facility whenever clinically indicated. Meeting criteria for discontinuation of Transmission-Based Precautions is not a prerequisite for discharge.” “Patients for whom Transmission-Based Precautions have been discontinued, no restrictions are required, unless they have symptoms, in which case they should stay in their (single) room. Precautions can be discontinued without test if at least 7 days passed since symptoms began, the patient is at least 3 days fever-free, and respiratory symptoms are improving. Patients for whom Transmission-Based Precautions are still required and who are discharged to a long-term care or assisted living facility, “should go to a facility with adequate personal protective equipment supplies and an ability to adhere to infection prevention and control recommendations for the care of COVID-19 patients.“
Full document: https://web.archive.org/web/20200324163418/https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-hospitalized-patients.html
Advisory: Hospital Discharges and Admissions to Nursing Homes (NYSDOH, March 25, 2020)
Based on the CDC Guidance from March 23, 2020 it states: “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.“
The advisory does not “order” hospitals to admit Covid-positive patients, it states that “no resident shall be denied re-admission or admission to the NH SOLELY based on a confirmed or suspected diagnosis of COVID-19” and that “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 advisory further states that “standard precautions must be maintained” and “critical personal protective equipment (PPE) needs should be immediately communicated“. The guidance was rescinded on May 10.
DOH_COVID19 _NHAdmissionsReadmissions_ 032520.pdf (ny.gov)
No Nursing Home had to admit Covid Patients
Nursing Homes never had to admit patients they couldn’t properly care for, and they were not supposed to do so.
Under New York law, (Title 10 of the New York State Codes, Rules and Regulations, 10 N.Y.C.R.R. 415.26) a nursing home shall “accept and retain only those nursing home residents for whom it can provide adequate care.”
Title: Section 415.26 – Organization and administration | New York Codes, Rules and Regulations (ny.gov)
This was also emphasized by the NYS OAG:
While some commentators have suggested DOH’s March 25 guidance was a directive that nursing homes accept COVID-19 patients even if they could not care appropriately for them, such an interpretation would violate statutes and regulations that place obligations on nursing homes to care for residents. For example, New York law requires a nursing home to “accept and retain only those residents for whom it can provide adequate care.
In fact, NYS had secured and created alternative facilities with beds for Covid-positive nursing home patients, if a NH would have declined a patient because it couldn’t provide adequate care: “Brooklyn Center … with 281 beds run by Maimonides and South Beach in Staten Island with 259 beds … Upstate, Catholic Health’s St. Joseph Post-Acute Center … was made a COVID-only facility with 80 beds. In addition, surplus capacity was made available at SUNY Downstate Hospital in Brooklyn and SUNY Upstate Hospital in Syracuse.”
Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis (ny.gov)
The March 25 Advisory had no or little impact on Nursing Home Deaths
There is no causal relation between admissions from hospitals and fatalities in nursing homes.
As analysis of timing of admissions and fatalities by NYSDOH shows, there is no link in timing of these two events, therefore no causal link. Peak admissions occurred on April 14, 2020, but peak mortality occurred already 1 week EARLIER, on April 8, 2020. Therefore, admissions could not be the cause of the fatalities.
Further analysis of NH admissions and fatalities on individual level (NH-by-NH) does also not show a consistent relationship:
132 NHs without admissions had Covid-related fatalities.
97 NHs had their first Covid-death before or on the day of their first admission.
One facility had 0 admissions, yet 20 deaths, another one had 8 deaths despite 0 admissions.
One facility had their first admission on April 30, 2020, but almost all (43 out of 53) fatalities happened by April 14, 2020.
The original analysis included only in-house fatalities, as this was the only data that could be verified and considered sufficiently reliable at this point (July 2020). A reanalysis of data in February 2021 including out of-facility deaths of NH residents and using updated numbers re-confirmed all results presented in the July report.
NYSDOH (February 11, 2021 Rev.): Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis.
Covid was in almost all nursing homes before March 25. According to information collected by NYSDOH from NHs, 72% of all nursing homes (222 out of 310) already had residents with Covid (confirmed or suspected) prior to the March 25 Advisory. In 98% of all nursing homes (304 out of 310), Covid was already present in the facility before admitting even a single infected patient.
They all had Covid in their buildings … Spread of it was not from discharged hospital residents. It simply wasn’t.
Most patients who were admitted to NHs were no longer contagious. COVID-19 infected individuals are most contagious 2 days before and 3 days after symptom onset and likely not infectious beyond 9 days (even though the virus can still be detected in the body). See e.g. ScienceDaily, Reuters). Hospitals discharged patients on average 9 days after admission, hence more than 9 days after symptom onset.
Tim Knauss in his article points out the lack of association between NH deaths and admissions from hospitals:
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.
“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”
“Loretto Health and Rehabilitation Center, the largest nursing home in Syracuse with 583 beds, accepted 20 new residents from hospitals … 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 … 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 [only] 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 … 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.
Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage. A reality check – syracuse.com)
On February 28, 2021, the Empire Center for Public Policy, (a conservative think-tank and highly critical of Cuomo), published a report with the (deliberately) misleading headline COVID-positive Admissions Were Correlated with Higher Death Rates in New York Nursing Homes. However, despite this headline, throughout the report the author, Bill Hammond admits that there’s no indication that the March 25 advisory caused higher deaths rates.
Even though the analysis found a positive correlation between admitted Covid-positive patients and deaths of residents, it correctly points out “a statistically significant correlation between two factors does not necessarily mean that one caused the other“. This is especially true when other important variables were not included in the analysis, as he also concedes, stating that “the available data were also limited in potentially important ways” and that “other possibly relevant factors […] were beyond the scope of this review.” He also adds that “the data does not clarify how many of the patients admitted to a nursing home from a hospital later died in the nursing home, which would add to the home’s death count even if the patient in question did not spread the virus there”. Also important, the correlation was only found in Upstate New York only, but not in Downstate where the virus was already everywhere.
It’s important to be cautious about reading too much into it … First of all, correlation does not equal causation. There are confounding factors that could be clouding the situation … The coronavirus pandemic wreaked havoc in nursing homes across the country and around the world, including in jurisdictions that did not adopt policies similar to those in the Cuomo administration’s March 25 guidance memo.
In his article Tim Knauss also refers to a review of the Empire Center data by a retired policy analyst named John Bacheller:
“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.”
Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage. A reality check – syracuse.com)
The NYS AG Office report (Nursing Home Response to COVID-19 Pandemic) only dedicates 2 out of 76 pages to the potential impact of NYSDOH guidance. The overwhelming part of it discusses the impact of other factors which drove NH fatalities (see below).
The NYS AG Office found that the IMPLEMENTATION of some FEDERAL and state guidance MAY have led to an increase of fatalities and obscured data reported by NHs. (p. 36). Specifically, it refers to misinterpretation of the DOH testing guidance from March 21 by some NHs.
The guidance stated: “ANY febrile acute respiratory illness or clusters of acute respiratory illness (whether febrile or not) in NHs and ACFs in New York City, Long Island, Westchester County, or Rockland County should be presumed to be COVID-19 unless diagnostic testing reveals otherwise. Testing of residents and HCWs with suspect COVID-19 is no longer necessary and should not delay additional infection control actions.”. This was overriding the March 13 directive which required for suspected cases less strict measures than for confirmed cases. The new directive required in these areas with high community transmission to implement protocols as if confirmed immediately without waiting for a positive test.
“Some facilities stopped testing residents for COVID-19 after the March 21 guidance was issued. For example, the administrator of a for-profit facility in New York City … alleged in April that the facility was not currently testing residents for COVID-19. He alleged that DOH told the facility to stop testing at some point in March. …Similarly, the administration of a for-profit facility on Long Island … alleged that the facility originally tested seven residents and had suspended the testing of residents following the DOH “directive” that tests were not required.”
NYS AG Office, Nursing Home Response to COVID-19 Pandemic, January 30, 2021 Rev., p. 38)
Note the OAG report says the administrators “alleged” that this was their understanding.
Just as the OAG investigation, the investigation by the Assembly Judiciary Committee also found no evidence that the March 25 order led to additional deaths in NHs:
Our investigation did not uncover evidence to suggest that the March 25, 2020 directive …. increased the number of COVID-19 fatalities in nursing homes.
Infected Staff, visitors, Non-Compliance, Lack of PPE and Testing led to high Fatalities
Data indicates that COVID-19 was introduced into nursing homes by infected staff.
The timing of employee infections correlates with the timing of peak nursing home resident fatalities. The peak number of NH staff reporting Covid symptoms was on March 16, 2020. The peak of NH fatalities was on April 8, 2020 – 23 days LATER. The average length between infection to deaths is 18-25 days. This indicates thousands of NH workers spread the virus in facilities.
NYSDOH (February 11, 2021 Rev.): Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis.
In March, it was believed that asymptomatic people were not likely to spread the infection, resulting in many infected NH employees continuing working.
On March 7, 2020, CDC issued guidance stating that asymptomatic healthcare staff in the “low-risk exposure category” were not restricted from work (Screenshot). This category included EMPLOYEES NOT WEARING A FACEMASK when having prolonged close contact with a COVID-19 patient who was wearing a facemask (Screenshot) and employees wearing only a facemask instead of a respirator when having prolonged close contact with a COVID-19 PATIENT WHO WAS NOT WEARING A FACEMASK (Screenshot).
Full document: Interim U.S. guidance for risk assessment and public health management of healthcare personnel with potential exposure in a healthcare setting to patients with coronavirus disease (COVID-19) (cdc.gov)
On March 16, 2020, the CDC issued a guidance stating that symptomatic employees could return to work only 7 days after symptom onset, 3 days fever-free and other symptoms improving – without test. (Screenshot). It also left it to facilities to decide earlier return to work to mitigate staff shortage. (Screenshot).
Criteria for return to work for healthcare personnel with confirmed or suspected COVID-19 (interim guidance) (cdc.gov)
The Assembly Judiciary Committee Impeachment Investigation found:
We are not aware of any evidence that undermines the central conclusion of the DOH Report that COVID-19 was likely introduced into nursing homes by infected staff.
In addition to staff, it is very likely that the virus was also introduced into NHs by visitors before visitations was suspended on March 13, 2020. However, since no testing or tracking took place, no data is available to evaluate the impact of visitors. The entire situation was further exacerbated by the nationwide lack of testing capacity and PPE in March and noncompliance with federal and state requirements in nursing homes.
In their NYS OAG identified lack of infection control Protocols in Nursing Homes throughout the state:
Failure to adequately screen or test employees for COVID-19 • Failure to obtain, fit, and train caregivers with PPE • Failure to train employees in infection control protocols • Failure to properly isolate residents who tested positive for COVID-19 • Failure to discontinue communal activities • Demanded that sick employees continue to work or face termination/retaliation.
Below are a few examples from the OAG report:
At a for-profit nursing home on Long Island […] COVID-19 patients who were transferred to the facility after a hospital stay and were supposed to be placed in a separate COVID-19 unit in the nursing home were, in fact, scattered throughout the facility despite available beds in the COVID-19 unit.
The owner of the facility directed staff not to wear masks and that it would be “business as usual” because the facility did not have sufficient PPE … Masks were optional even after visitors were barred from the facility and there was no quarantining of residents until weeks into the pandemic.
The facility allegedly violated basic infection control protocols by allowing communal dining, contrary to government-issued guidance, until the first resident went to the hospital in late March.
A funeral director who reported to OAG that when he entered the facility in mid-April to retrieve a deceased resident, he observed staff wearing PPE that was only in the forms of gowns, regular surgical masks, and gloves. He stated staff did not take his temperature when he entered the facility, nor was he asked to fill out a health questionnaire. He also stated that he observed used gloves strewn on the floor of the facility.
A facility manager indicated that an experienced LPN worked on a unit with over 40 residents until March 14, when he stopped working, was diagnosed with COVID-19, and later died. By March 21, the facility reported 20 percent of its staff were out sick. The facility reported no COVID-19 resident deaths up to that date. From March 22 to March 29, the facility reported seven COVID-19 resident deaths, […]. From March 29 to April 4, the facility reported 26 COVID-19 resident deaths.
The facility continued to accept new residents despite ongoing staffing difficulties, having nine out of 126 residents who tested positive for COVID-19, five residents dying from confirmed COVID-19, and five staff testing positive for COVID-19.
New York State lost less lives in Nursing Homes than many other States
Nursing home residents died all over the globe and all over the nation. This was never a New York specific problem. In fact, New York lost less lives in Nursing homes than many other states considering population as well as number of nursing home residents per capita.
Nationwide, 31% of Covid deaths are linked to nursing homes. In 5 states, it is more than 50%! In New York it is 30%, just below nationwide average, and NYS “ranks” 31st out of 51 States (incl. DC).
Nearly One-Third of U.S. Coronavirus Deaths Are Linked to Nursing Homes – The New York Times (nytimes.com)
New York State is also state with the highest number of nursing facility residents in total, while being only #4 in total population. This means NY has by far the highest number of NH residents per capita.
The OAG points out multiple ways in which NYS government improved the situation in NHs, very likely preventing a lot more fatalities (as unfortunately happened in many other states):
- DOH Inspections at NHs increased infection control compliance# and provided infection control support.
- EO 202.30 from May 10, required NH to test full time staff twice a week for COVID-19. “According to the OAG without the EO “many staff would not have been tested by the nursing homes.”
- DOH provided testing at facilities which protected residents. The OAG refers e.g. to a facility where “testing issues had been resolved through apparent facility-wide testing conducted by DOH. Relatively shortly thereafter, the facility reported it was COVID-free.”
- DOH helped NHs to address staffing problems through an online staffing portal to help provide temporary assistance when they were experiencing staffing shortages due to staff illness and quarantine. This resource helped several nursing homes address staffing problems.
NYSDOH did not hide or undercount “nursing home deaths”
NYSDOH collected various data from all NHs. Due to lack of testing early to confirm COVID-19 at the beginning, judgement calls about what was a presumed COVID-19 caused death had to be made. Without standards to do so, different approaches were taken, thus making the data in general unreliable. Additionally – and understandably – a lot of mistakes were made.
Initially DOH collected death data via phone, from mid March through HERDS (Health Electronic Response Data System). The questions were revised several times because the resulted in undercounting, overcounting, data mismatch, double counting. mid April, after fine-tuning the assessment tool, DOH sent out spreadsheets to all NHs with the data reported so far, asking to update them. More changes to questions were made to clarify and gather additional information.
Starting April 15, 2020, the DOH published COVID-19 infections and deaths daily, including a breakdown of those in NHs. This was more detailed than the reporting systems of most other states. The Website clearly stated that the numbers included confirmed and presumed deaths within facilities and excluded those outside the facility.
Deaths of NH residents in hospitals were included in the tally of hospital deaths. This approach was logical, consistent, and as pointed out in the Abramowitz Memo, symmetrical:
If a nursing home resident died after being transferred to a hospital, that death was counted in the public tally as a hospital death; conversely, if a hospital patient was transferred to a nursing home and then died, that death was classified as nursing home death. If the State’s tally of nursing home deaths was supposedly understated by omitting residents who died in a hospital, then the nursing home death figure logically was overstated by including hospital patients who died after being transferred to a nursing home.
Accurate assessment of out-of-facility deaths was especially complicated and depended on both NH and hospital staff who were already overwhelmed. NHs who provided the information to DOH had only secondhand information and were depending on hospitals to obtain it. Hospital staff struggled to keep NHs updated. DOH could not verify all data from NHs and hospitals.
Because of the lack of testing and varying period of incubation time, nobody could know where an infection occurred. Therefore, counting all out-of-facility deaths of NH residents as “nursing home deaths” would have muddled data even more – e.g. a NH resident being transferred to a hospital for an unrelated matter, infected and dying at the hospital, would have been counted as “nursing home death”.
Counting COVID fatalities by location of death eliminated a) the need for using unreliable secondhand information, and b) the risk of double counting and thus overreporting, if a death was included by both hospital and NH. Considering that New York and other Democratic states were repeatedly blamed to be exaggerating their numbers, and the fact that double-counting did occur, this was of utmost importance.
NYSDOH published a report on July 6, 2020 on Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis, stating 6,432 people had died from COVID-19 in NHs between March 1, 2020 and June 10, 2020. The report is neither false nor misleading as claimed. It clearly refers to fatalities IN nursing homes.
While the impeachment report suggests that the DOH could have been more transparent by either including out-of-facility deaths (which as explained would have compromised reliability) or explaining why those deaths were not included (which is not unreasonable) it states:
The published DOH Report disclosed only in-facility deaths … and labeled the “nursing home” fatalities as including “confirmed and presumed fatalities, NH population only in NH facilities … the description of the data was technically accurate.
For their investigation, the OAG requested and data from a sample of 62 NHs and compared it to the numbers reported by NYSDOH. Inconsistent and inaccurate reporting was found on all sides: E.g. a facility reported 7 deaths (1 confirmed, 6 presumed) to DOH, but 31 to OAG (25 more). Another facility reported 11 deaths (5 confirmed, 6 presumed) to DOH, but 40 to OAG (29 more). On the other hand, a facility reported 11 confirmed and 1 suspected deaths at facility to both DOH and OAG, but DOH reported only 1 confirmed instead of 11 until July 31, but corrected the data to 11 thereafter. Some facilities reported location of death inconsistently.
Discrepancies resulting from excluding NH resident deaths that occurred in hospitals do “not reflect under-counting of total NYS COVID-19 deaths.
Purveyors of disinformation claim Cuomo’s administration tried to “cover up” facts about NH deaths by misrepresenting a statement Melissa DeRosa made during a Zoom meeting between her, Dr. Howard Zucker and a group of NYS legislators on February 10, 2021. The meeting was with regards to a list of questions submitted by them on August 20, 2020, which was answered on that day (February 10, 2021). A legislator asked why it had taken so long. Melissa DeRosa explained that the delay was caused by the August 26 DOJ CRIPA request by the Trump administration which had to be dealt with first since it was clear it was political and an attack on NY (see HERE for more). Her expression “we froze” for temporarily holding off on answering questions by the NYS legislators to respond to DOJ was willfully misrepresented as “hiding NH data”.
Ron Kim was at the meeting and after the meeting was leaked, he spoke and misrepresented the comments to The NY Post.
Governor Cuomo did not give immunity to bad-acting nursing home executives
On March 23, Cuomo issued Executive Order 202.10 to increase the healthcare system capacity, remove obstacles and maximize New York’s ability to fight the pandemic and save lives. It includes waivers of supervision and license requirements such as allowing NPs registered in the US to practice in NY without NYS license) and made it easier for Nurse Practitioners to provide medical services based on education and experience. It provided additional authority to the Commissioner of Health so he could, for example, require hospitals to increase the number of beds.
It further expanded the “Good Samaritan immunity“. Contrary to what is widely claimed, the immunity was not for executives who donated money to Cuomo. The immunity protected all healthcare workers such as physicians, physician assistants, and nurses including managers who had to make complicated decisions in an unprecedented situation under immense stress. It is not a blanket immunity and does not cover gross negligence, willful, reckless or criminal misconduct. The EO was also not issued “after” the Greater New York Hospital Association donated to Cuomo. They donated 2018 to the New York State Democratic Committee.
The relevant statute was enacted as Emergency Disaster Treatment Protection Act by New York State Legislature on April 6, 2020, hence endorsed by the New York State lawmakers. The purpose of the EDTPA was to “promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.
Full document: Emergency Disaster Treatment Protection Act
To the extent that the executive order and/or EDTPA were interpreted by any nursing homes as providing blanket immunity for harm to residents other than intentional harm, even if the harm was related to intentional resource and staffing allocations, Attorney General James disagrees with such an interpretation as illogical, contrary to public policy, and contrary to the law’s intent. The intent was to support health care professionals making impossible health care decisions in good faith during this unprecedented crisis.
Note: It seems the EO has been removed from the NYS government websites. It is explained on multiple law pages and the OAG report. Sources used here: Health Law Alert: Governor Cuomo Executive Order No. 202.10 (March 23, 2020) (hancocklaw.com) and New York’s Executive Order COVID-19 (natlawreview.com) and New York State Legislature Enacts Emergency Disaster Treatment Protection Act | (wssllp.com).
The New York “Nursing Home Scandal” was made up
Trump & Co first attempted to downplay COVID, accusing New York of padding the death toll in April and suggesting death numbers were inflated in general to hurt his re-election. A key player was Trump’s plant at the U.S. Department of Health and Human Services, Michael Caputo, a NY republican and Roger Stone mentee who also worked in Russia to polish up Putin’s image. Caputo was trying to suppress and change CDC reports to support Trumps message and image starting in May 2020 (CNBC, WaPo, The Hill, Politico, HuffPost, UCSUSA).
They then twisted a new narrative and shifted blame and attention to the one who had called them out on their failures consistently, bluntly and publicly.
Cuomo’s DNC speech, in which he called the federal government incompetent and dysfunctional, triggered also a tweet storm by Trump such as “the real Cuomo number of people killed because of his total incompetence is 11,000” (August 18).
On August 26, 2020, the Civil Rights Division of the Department of Justice announced it was “requesting data from Governors of States that issued COVID-19 orders that may have resulted in deaths of elderly Nursing Home residents, namely from New York and 3 other democratic states (NJ, PA, MI). New York’s March 25 Advisory is specifically mentioned. Ironically, Florida, one of several other states with similar orders, and worse NH deaths statistics than NY, was praised in the same press release.
Trump continued his tweet attacks “One of the WORST governors in the USA. Caused 11,000 deaths in nursing homes alone due to his bad moves and incompetence” (September 10), repeating his false narrative, one of his preferred tools of disinformation.
In October 2020, the DOJ Civil Division sent a subsequent letter to New York requesting more data to expand their probe from public to private NHs, issued by Jeffrey Bossert Clark, then Acting Assistant Attorney general for the Civil Division. Clark later tried to overturn the election results for Trump. (Slate, NYT, WaPo).
The Department of Justice dropped the investigation in July 2021. The Office of the Manhattan District Attorney dropped its probe into the handling of nursing homes and coronavirus deaths data in January 2022.
Disinformation and propaganda using the deaths of senior citizens and the pain of their families was also spread by FOX’s Janice Dean and NY Assembly member Ron Kim, both not only political adversaries, but also having personal motives. Finally, NY’s left extremists looking for a way to get rid of Cuomo, weaponized NH deaths. Obviously, these are the same unscrupulous individuals who weaponized sexual harassment claims. A special role plays a MAGA organization named “Voices for Seniors” run by Trump supporters and surrogates.
Janice Dean used the deaths of her in-laws to attack Cuomo. They both died in March/April 2020 unrelated to the March 25 Advisory.
Her father-in-law died on March 29, 2020, in a nursing home, only 4 days after the advisory. The average length between infection to deaths is 18-25 days. Hence, it is impossible that he got infected and died within 4 days. Moreover, Janice Dean herself stated that he was switched to another floor 1 week before he died and blames the Cuomo “mandate” for it, which happened 3 days LATER. He likely got switched to another floor because he was symptomatic.
Her mother-in-law died on April 13, 2020 in an Adult Care Facility. The advisory for NH was only extended to Adult Care Facilities on April 7, 2020 (doh_covid19_acfreturnofpositiveresidents_040720.pdf (ny.gov). Again, there are only 6 days between the advisory and death. In addition, her mother-in-law told them weeks earlier about sick workers & residents going outside without masks and without washing hands.
- Janice Dean: Coronavirus cost my in-laws their lives. Gov. Cuomo, our vulnerable loved ones deserved better | Fox News
- Janice Dean on Losing Her In-Laws Due to NY Gov Cuomo’s Nursing Home Policies | Independent Women’s Forum (iwf.org)
- Janice Dean: Cuomo’s COVID nursing home policies robbed my in-laws of their 60th wedding anniversary | Fox News
- Fox News meteorologist Dean turns into fierce Cuomo critic (detroitnews.com)
Janice Dean published a book “Make Your Own Sunshine: Inspiring Stories of People Who Find Light in Dark Times” on March 2, 2021 and used Cuomo (and her in-laws) as marketing tools.
Another player is Vivian Zayas. Zayas’s mother died on March 30 or April 1, 2020, only 6 days after the March 25 advisory. According to Zayas’ Twitter post her mother showed symptoms around March 24, and according to her NYP opinion piece before March 27. Her political (and financial) motives to blame Cuomo falsely are as clear as Dean’s.
Vivian Zayas is a featured author for the right-wing publication The Federalist, financed by Trump donor Richard Uihlein, co-founded by Ben Domenech, husband of Meghan McCain, who is very close to Janice Dean. She also appeared on Lara Trump’s Show The Right View (YouTube, at 28:00 minutes).
Tracey Alvino aka Traci Belmonte
Tracey Alvino is assistant director of Voices For Seniors. He father started to exhibit COVID-19 symptoms around March 27, was released as “Covid Suspect” on March 30 (NPR Interview). Two 2 days later he had to be hospitalized and died mid-April. As with all other accusers, the timeline shows her father was infected before the March 25 advisory.
- Families of NY nursing home COVID victims want Cuomo probe (nypost.com)
- Coronavirus survivors battle ongoing symptoms, might never be the same (usatoday.com)
- ‘COVID suspected’ patient discharged; infected entire family before death | PIX11
As Dean and Zayas, Alvino is politically motivated to blame Cuomo. She’s a staunch right-winger and Trump supporter.
- Proudly heard on Breitbart and Hannity: Traci Belmonte | WilkowMajority.com
- Removed from Twitter, had to go to Parler: lawenforcementtoday.com
- Voices of CPAC 2017 Traci Belmonte of Lanterns.buzz madisonscpc.net – YouTube
- Voices of CPAC 2018 Traci Belmonte – YouTube
- Traci Belmonte (lanterns.buzz) …. also see associated YouTube channel.
- Works for a Republican Campaign Strategy & Consulting firm that currently works on taking over school boards.
Another prominent player is Trump Supporter Jonathan Gilliam. Sean Hannity wrote the foreword for Gilliam’s book “Sheep No More” (see hannity.com). Here (YouTube) is Gilliam speaking at Voices For Seniors event. Below propagating Trump’s lie:
Ron T. Kim
Ron Kim holds a grudge against Cuomo since 2015, when Kim turned against a law (he had originally supported) the Governor had signed to protect nail salon workers from wage fraud, abuse and unsafe work conditions. In exchange for ten-thousands of donations from nail salon associations and owners, Kim changed his position.
“At a fund-raiser for Mr. Kim in July, co-hosted by the president of the Korean American Nail Salon Association, Sangho Lee, nail salon owners donated nearly $25,000 … at least $17,000 … came from salon owners, including present and past leaders of the Korean nail salon association. (Screenshot#1, Screenshot#2).
Backed by Nail Salon Owners, a New York Legislator Now Fights Reforms (New York Times, November 8, 2015)
Nail salons are top donors to “Ron Kim For New York”:
Ron Kim supported a lawsuit challenging Cuomo’s nail salon wage bond mandate by recommending to use a lobbying firm he had worked for. The lawyer representing the nails salon associations in the lawsuit is also a Ron Kim donor (Michael Yim, see above). The lawsuit was dismissed (Wage Bond Requirement Lawsuit Dismissed in NY (suretybonds.com), Ron Kim left with a defeat and bad reputation.
“The organizations hired the Parkside Group, a lobbying firm where Mr. Kim worked in 2012. The move was made at the assemblyman’s recommendation, according to Donald Yu, the director of the Korean nail salon association: “He said that in order to do the lawsuit, you also need to hire a P.R. firm to do press conferences and to get the articles into newspapers and radio and TV.”
Backed by Nail Salon Owners, a New York Legislator Now Fights Reforms (New York Times, November 8, 2015)
It was Ron Kim who distorted Melissa DeRosa’s words and created the false narrative of “covering up” Nursing Home deaths, when the Cuomo Admin had to deal with the Trump Admin’s attack first and postponed answering the NY legislature request in August 2020.
Ron Kim is deeply involved with Voices for Seniors and Janice Dean: Queens assemblyman and advocates rally for nursing homes investigation and immunity repeal – QNS.com. He attends Voices For Seniors rallies and is featured on their website.
Nursing Home Sources
- NYS AG Office (January 30, 2021 Rev.): Nursing Home Response to COVID-19 Pandemic: Nursing Home Response to COVID-19 Pandemic (ny.gov)
- Empire Center for Public Policy (February 28, 2021): COVID-positive Admissions Were Correlated with Higher Death Rates in New York Nursing Homes
- Tim Knauss (Syracuse.com, March 4, 2021): Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage. A reality check.
- Michelle Andrews (PolitiFact, August 24, 2020): Is Cuomo directive to blame for nursing home COVID deaths as HHS official claims?
- Elkan Abramowitz (Counsel to the New York State Executive Chamber), July 29, 2021: Memorandum of Law to dissuade further investigation and prosecution in re Grand Jury Investigation, F. #2021R00167.
- NYSDOH (February 11, 2021 Rev.): Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis.
- Impeachment Investigation Report to Judiciary Committee (DavisPolk& WardwellLLP November 22,2021)
Relevant Federal and State Guidance
CMS – Guidance to Surveyors for Long Term Care Facilities, §483.80 Infection Control:
Federal regulations require facilities to have an infection prevention and control program to identify and control communicable diseases among residents and staff. These include instructions on when and how to use transmission-based precautions, including droplet and airborne isolation precautions, e.g. use of facemasks, shields or goggles, private room (or cohorting).
Full document: som107ap_pp_guidelines (cms.gov)
Letter to Nursing Home Administrators regarding Infection Prevention and Control (NYSDOH, January 29, 2020): Reminds NH of their infection prevention and control obligations, ICP best practices, and included a self-assessment tool to identify weaknesses in need of correction.
Full document: https://www.health.ny.gov/professionals/nursing_home_administrator/docs/dal_nh_19-19_infection_control.pdf
Letter to Nursing Homes and Hospitals to prepare for PPE shortage (NYSDOH, February 6, 2020): Reminds healthcare providers to follow CDC infection control guidance (which includes a PPE Burn Rate Calculator), instructs them to prepare for the anticipated PPE shortage giving detailed instructions how to do so, and to develop pro-actively resource controls.
Full document: 2020-02-06_ppe_shortage_dal.pdf (ny.gov)
Guidance for Nursing Homes regarding precautions and procedures (NYSDOH, March 11, 2020): Requires employee screening, quarantine for symptomatic staff as well as for asymptomatic staff with potential exposure. Also provided information on conserving PPE while pointing out to not discourage use when indicated for patient care.
Full document: dal_nh_20-04.pdf (ny.gov)
Health Advisory: COVID-19 Cases in Nursing Homes and Adult Care Facilities (NYSDOH, March 13, 2020): Health Advisory based on this CMS guidance. It includes a guidance on how to prevent introduction of the virus to the facility and what to do if there are confirmed or suspected Covid-19 cases. such as: Require all HCP wear a facemask while within 6 feet of residents and residents to wear facemasks when HCP entered their rooms, prevent staff floating between units, cohort positive residents with dedicated HCP, re-test residents who tested negative but developed symptoms immediately, and review and reinforce their policies and procedures with all staff. Full document: https://coronavirus.health.ny.gov/system/files/documents/2020/03/acfguidance.pdf
Criteria for Return to Work for Healthcare Personnel with Confirmed or Suspected COVID-19 (CDC, March 16): CDC updates guidance. HCP may return to work if at least 72 hours fever free, respiratory symptoms improve and at least 7 days have passed since symptoms first appeared. The latter can be replaced with a negative test. After returning to work, HCPs have to wear a mask at all times for at least 14 days after illness-onset (longer if respiratory symptoms not resolved) and self-monitor. However, to mitigate staff shortages, HCP can be evaluated by occupational health to determine appropriateness of earlier return to work.
Full document: Criteria for return to work for healthcare personnel with confirmed or suspected COVID-19 (interim guidance) (cdc.gov)
Health Advisory: Protocols for Personnel to Return to Work Following COVID-19 Exposure (NYSDOH, March 16): Based on CDC guidance, NYS allows symptomatic HCP (confirmed or suspected) to return to work if furlough would result in staff shortage and if they were isolated at least 7 days after illness onset and fever-free at least 72 hours with other symptoms improving., and wear a face mask for 14 days after illness-onset (if mild symptoms persist but are improving). Asymptomatic HCP with exposure (confirmed or suspected) have to self-monitor twice a day (temperature, symptoms), undergo temperature monitoring and symptom checks at the beginning of each shift and at least every 12 hours, immediately stop working in case of symptoms, and wear a facemask while working until 14 days after the exposure. Staff with symptoms consistent with Covid-19 should be dealt with as if infected, regardless of the availability of test results.
Full document: Advisory-HCP-return-to-work-20200316-final.pdf (nyshfa-nyscal.org)
Note: This NYSDOH advisory is stricter than CDC guidance.
Health Advisory: Respiratory Illness in Nursing Homes and Adult Care Facilities in Areas of Sustained Community Transmission of COVID-19 (March 21, NYSDOH): NHs and ACFs in New York City, Long Island, Westchester and Rockland counties should not await testing results for staff and residents with respiratory symptoms but immediately be presumed infected and additional infection control protocols initiated.
Full document: 22-doh_covid19_nh_alf_ilitest_032120.pdf (ny.gov)
COVID-19 Infection Control Guidance for Nursing Homes and Adult Care Facilities (NYSDOH, March 26, 2020): “When you suspect COVID-19 • Place a procedure mask on resident • Isolate the resident in a separate room with door closed • Contact and droplet precautions for all care • Gloves, gown, facemask, eye protection • Immediately contact NYSDOH Regional Epidemiology team • Transfer decisions should be based on medical need, not suspicion of COVID-19 alone” “When a resident is a confirmed case • Notify NYSDOH Regional Epi Contact • Actively monitor residents on affected unit(s) • Residents remain in their rooms • Cancel group activities and communal dining • Residents to wear a face mask (if tolerated) in their rooms when staff are present • Staff: No floating, cohort staff caring for residents • Contact and Droplet precautions while caring for all residents on affected unit(s)”. Suspect or Confirmed Cases Call NYSDOH Regional Healthcare Epidemiology.
Full document: PowerPoint Presentation (ny.gov)
Letter to nursing home administrators updating the return-to-work guidance (NYSDOH, April 29, 2020): Asymptomatic HCPs are not eligible to return to work for 14 days from first positive test date in any situation. This overrides the shorter CDC timeframe of 7 days from March 16 which was originally followed. For NHs with staffing issues several options to obtain assistance and staff are suggested in this letter (such as the online portal NYS established).
Full document: nh-letterregardingemployees-4.29.20.pdf (ny.gov)