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State nursing home directive complicated COVID-19 tracking, care

Gov. Andrew M. Cuomo discusses the new nursing

Gov. Andrew M. Cuomo discusses the new nursing home guidelines Sunday. Credit: Office of the Governor

March 18 marked the start of a most consequential week for nursing home residents across Long Island and New York State.

That was the week when the coronavirus epidemic began surging, the sick started pouring into hospitals and doctors began trying to make space by releasing patients to nursing home care.

At the start of the seven-day period, the Island’s hospitals tallied 59 COVID-19 admissions while the statewide total stood at 617. By week’s end, the coronavirus count at Long Island’s medical centers had multiplied by 16 times to 983 and the state’s mark had soared to 5,327 — with many more virus-stricken patients still flooding into emergency rooms.

Against that backdrop, on March 25, the New York State Department of Health notified nursing homes that they must accept coronavirus patients who had been deemed “medically stable” for discharge from hospitals while still needing care. This means a patient’s vital signs have stabilized, but it doesn’t reflect his or her actual condition as defined by the American Hospital Association as being either good, fair, serious or critical.

The order also barred nursing homes from requiring incoming patients “to be tested for COVID-19 prior to admission or readmission.”

“During this global health emergency, all [nursing homes] must comply with the expected receipt of residents returning from hospitals to nursing homes,” the memo read. It underscored that “no resident shall be denied readmission or admission to the nursing home solely based on a confirmed or suspected diagnosis of COVID-19."

On Sunday, following calls for an independent investigation, Gov. Andrew M. Cuomo announced hospitals can no longer send a patient who has tested positive for COVID-19 to a nursing home. A Cuomo aide insisted this was not a reversal, but a new policy based on increased hospital capacity and testing.

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“We now have the capacity and the additional testing that we didn't have in March,” Cuomo spokesman Rich Azzopardi said. “Positive (COVID-19) patients can also be released to the COVID-19-only facilities we set up.”

But the two initial directives have played critical roles in the state’s inability to accurately track the true number of COVID-19 fatalities and in families alleging that Cuomo placed their loves ones at greater risk of death. They have forced Cuomo to face criticism that hastily enacted policies cost lives in a population composed primarily of chronically ill seniors with an average age of 83.

Wilfred Kleisler, 84, began showing symptoms of COVID-19, including weakness, diarrhea and fever, at the Sunrise Manor Center for Nursing and Rehabilitation facility in Bay Shore, where he’d lived for more than a year, said Diane Panizzo, Kleisler's daughter.

Kleisler died last week at Southside Hospital from COVID-19, Panizzo said, after a positive COVID-19 test. Sunrise Manor did not return calls seeking comment.

While saying that she couldn't directly blame the state executive order for her father's sickness, Panizzo, of Farmingville, said, “You cannot mix vulnerable populations with COVID patients.”

Cuomo, who once stated that the virus could sweep through nursing homes “like fire through dry grass,” has responded both that the state-chartered facilities are paid to assist patients who need hospital aftercare and that nursing homes are obligated to notify the state if they cannot safely carry out their duties.

"Once again, this nursing home directive was based on CDC guidelines and is virtually identical to several other states and the clear policy is if a nursing home does not have the facilities, the staff nor the protective equipment to care for a resident, they must transfer them to a place that can — period," Azzopardi said. "Throughout this pandemic, we have offered assistance in transporting, access to more than 95,000 volunteers to address staffing issues — which 400 of 600 nursing homes in the state used — and shipped more than 4 million pieces of protective equipment to nursing homes. ”

State officials, who asked not to be identified, explained the March 25 order as one born out of concern that nursing homes might not take patients who were treated in hospitals for the virus the way some HIV patients were discriminated against in the early days of the AIDS crisis in the 1980s. The officials cited fear that elderly patients could be left to seek housing, which could worsen their condition and spread the virus.

The March 25 order states, "Residents are deemed appropriate for return to a [nursing home] upon a determination by the hospital physician or designee that the resident is medically stable for return." The notification gives no specific definition of medically stable, though health experts assumed that those patients should have been assumed to be contagious.

John Dalli, an elder care attorney at Mineola-based Dalli & Marino, said the order sent sick people into facilities ill-equipped to care for them.

“There’s no way these facilities, understaffed to begin with, could handle an influx in cases,” he said.

New York has 101,518 residents in nursing homes, according to Cuomo, the highest total among the 50 states.

As of May 10, the Cuomo administration reported that 1,232 Long Island nursing home and adult care facility residents had died of confirmed or suspected COVID-19 illnesses since March 1.  The numbers don't include nursing home residents who died at hospitals. The administration also revised its count of nursing home deaths across the state to more than 4,800 people, 1,700 greater than previously reported.

Nursing home advocates were quick to realize the potential implications of the Department of Health directive.

“This memo raised a tremendous concern and we raised all sorts of issues” with regulators, said Michael Balboni, a former state senator who is now executive director of the Greater New York Health Care Facilities Association, an industry lobbying group.

Balboni said he understood overwhelmed hospitals were in crisis. While stopping short of faulting the governor or the state, he said the order should have accompanied a plan to make sure the nursing homes were equipped to face the onslaught, including with personal protective equipment for staff.

“In a perfect world everyone would have stopped and said, ‘Get all nursing homeowners on the phone. Who has the capacity to isolate this [COVID] population? Who has PPE? And who has the staff to be able to safely work with these patients before the patient is transferred?’” Balboni said.

The state’s order informed nursing homes: “Critical personal protective equipment (PPE) needs should be immediately communicated to your local Office of Emergency Management, with the appropriate information provided at the time of request.”

Four days later, state Health Commissioner Howard Zucker established protocols for separating residents into “positive, negative and unknown” regarding coronavirus infections, as well as creating specific staffing teams for coronavirus-positive patients.

Maria Torroella Carney, chief of geriatrics and palliative medicine and medical director of post-acute services at Northwell Health, which operates hospitals and three nursing homes across Long Island and the metro area, said nursing homes had clear guidelines from the state for separating COVID-19 patients and for assuming all COVID-19 transfers from hospitals were still COVID-19 positive, and thus contagious.

“The best practice is to assume that staff may be carriers, to test and monitor symptoms of staff on a regular basis,” she said. “Assume patients are positive until you get the testing done.” 

Gurwin Jewish Nursing and Rehabilitation, a 460-bed facility in Commack, used movable barriers in a dedicated wing of the facility to house COVID-19 patients from hospitals, along with a dedicated entrance to stop the spread, officials said. “We try to keep things as segregated as possible,” said chief executive Stuart Almer, noting the facility has a 28-bed ventilator unit. While he and family members of residents attempted to push back on the state order, there was also the understanding that the state was in crisis. “Positive or not we take care of people,” he said.

The health commissioner also said the state would immediately enforce new rules that bar nursing home workers who contract and overcome the coronavirus workers from returning to work for 14 days after symptoms appeared. The federal Centers for Disease Control recommends allowing coronavirus-positive workers back on the job at least three days since recovery from symptoms and seven days since symptoms first appeared.

The state officials who asked not to be identified said Cuomo enacted the 14-day cushion to provide more time for workers to recover than required under federal regulations. To alleviate staffing shortages, nursing homes can turn to the administration's newly created database of 95,000 health care workers, many from out of state, who volunteered to work in hospitals and nursing homes. About 400 nursing homes have since used the “portal” to replenish staffing, they say.

With lobbyists for nursing homes and other health care facilities raising alarms, Cuomo and the legislature passed a state budget on April 3 that granted immunity from “any liability, civil or criminal, for any harm or damages” resulting from health care services provided for COVID-19, except for lawsuits based on actions deemed criminally depraved or negligent.

The language covers “any health care facility or health care professional,” including hospitals, nursing homes and volunteer organizations. The immunity was retroactive to March 7, according to the bill.

State officials said the impetus for the immunity clause was an influx of health care workers from other states operating without New York licenses. In an effort to increase the capacity of hospitals, Cuomo issued a temporary order allowing these people to work in New York. 

Without the immunity measure, any health care worker without a New York license and the hospital or nursing home in which they were working could potentially be sued for a mistake. They called it a "good Samaritan" law.

Cuomo announced April 23 an investigation of nursing homes and their compliance with COVID-19 related executive orders, including a requirement they report COVID-19 test results and deaths to residents’ families. The state said it would begin to inspect facilities for compliance with state directions, and violators faced fines of up to $10,000 and loss of their operating license.

For some of the biggest nursing homes on Long Island, alarms by family members went off after the Department of Health issued the March 25 directive.

“The immediate impact on the families was significant — they were outraged,” said Gurwin’s Almer. “Everyone has been very, very vocal on this. We all are concerned for our residents in our facilities.”

Gurwin through early May had admitted 52 COVID-19-positive patients since the March 25 directive: 17 from Huntington Hospital, 10 from Stony Brook, eight from St. Catherine of Siena, five from Southside Hospital and two or three each from eight others. To date, 46 people have died at Gurwin due to COVID-19, of which 40 were Gurwin residents and six were hospital admissions, according to data provided by Gurwin, which also reported 76 patients recovered from COVID in its care. 

Hospital admissions rushed upward after March 25, ultimately peaking at 18,825 statewide on April 11 and 4,085 on the Island April 13. In a statement, the health department wrote that “we are not using nursing homes as hospital surge capacity.” However, the agency’s March 25 directive did state: “There is an urgent need to expand hospital capacity in New York State to be able to meet the demand for patients with COVID-19 requiring acute care.”

For hospitals overrun with COVID-19 patients by the end of March and continuing through April, the March 25 directive was a godsend.

“It was very important,” said Torroella Carney of Northwell. The order was issued “near the peak of our bed-capacity issues,” she said. COVID-related patient admissions at Northwell hospitals at that point had swelled to 3,425 at the height of the pandemic on April 7, a spokesman said. Northwell has discharged more than 1,000 COVID-19 patients to nursing homes over the past two months, spokesman Terry Lynam said.

The directive freed hospitals from the prior requirement of two consecutive negative COVID-19 tests before discharging a patient, Torroella Carney said, which “is not easy to get.”

She added that “there are risks to keeping people in acute-care hospitals for a prolonged period.” Some patients were stable but couldn’t go home because other family members were also sick and couldn’t care for them. Sending them to nursing facilities “seemed at that point a necessary plan of care, to provide a safe health care environment for people not acute who could not go home.”

“I think there was a huge pressure to help the hospitals, and skilled nursing has always been part of the continuum of care,” she said. 

 Stephen Hanse, chief executive of the New York State Health Facilities Association, another industry lobbying group, said of the department’s directive:

“When you’re dealing in a state of emergency, when advisories are issued they are effective immediately. You have to adhere to them. So the concerns were raised but you’re in a pandemic emergency situation.”

With Yancey Roy

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