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  • Writer's pictureLeitner Varughese Warywoda

"Like Fire Through Dry Grass: The Devastating Impact of COVID-19 Policies on Nursing Home Mortality


The Select Subcommittee on the Coronavirus Pandemic has scheduled a hearing on May 17, 2023, titled "Like Fire Through Dry Grass: Nursing Home Mortality & COVID-19 Policies." The hearing will specifically look into "must-admit" orders issued by several states, which required nursing homes and long-term care facilities to admit individuals who had tested positive for COVID-19. This examination and investigation of COVID-19 policies will be conducted by the Subcommittee to enhance understanding of COVID-19 related safety issues in nursing homes and ensure better practices are implemented in the future.


The COVID-19 Nursing Home Scandal in New York Nursing Homes


Introduction


The coronavirus pandemic has upended our lives in ways we never imagined. It exposed the weaknesses and vulnerabilities of our healthcare system, especially long-term care. New York was one of the states hit hardest by the virus, with nursing homes bearing the brunt of the pandemic. Following the initial impact, the state was rocked by a scandal involving nursing homes and their residents. This blog explores the COVID-19 nursing home scandal in New York and its aftermath.


The COVID-19 Pandemic & Its Initial Impact on New York Nursing Homes


The COVID-19 pandemic impacted nursing homes in New York in ways that were unprecedented. The elderly population is the most vulnerable to the virus, and nursing homes had to act fast to protect their residents. The state responded with several policy changes, including testing protocols, personal protective equipment, and isolation protocols, to name a few.


The federal government's warning memo to nursing homes on February 6, 2020


One month prior to the Covid-19 virus entering the United States all nursing home owners and operators were issued a memo of warning and recommendations:


The Centers for Medicare & Medicaid Services (CMS) is urging all healthcare facilities to review the information provided by the Centers for Disease Control and Prevention (CDC) in response to the emerging 2019 Novel Coronavirus threat and ensure they are adhering to standards to provide safe, high-quality care. CMS recognizes the importance of considering "emerging infectious diseases" in emergency preparedness plans and expects healthcare staff and surveyors to comply with basic infection control practices. To assist facilities in self-assessment and review of their own practices, CMS provides online courses developed with CDC. During surveys in 2020, CMS and accrediting organization acute care surveyors will be alert to healthcare staff's hand hygiene practices. The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services has issued guidance to remind healthcare providers of the ways patient information may be shared so that the protections of the HIPAA Privacy Rule are not set aside during an emergency.


Citations to CDC guidance for nursing homes can be found here:

  1. Centers for Disease Control and Prevention. Transmission-Based Precautions. Retrieved from https://www.cdc.gov/infectioncontrol/basics/transmission-based-precautions.html

  2. Centers for Disease Control and Prevention. Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-recommendations.html

  3. Centers for Disease Control and Prevention. Interim Guidance for Infection Prevention and Control of Coronavirus Disease 2019 (COVID-19) in Nursing Homes. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html

  4. Centers for Disease Control and Prevention. Strategies to Optimize the Supply of PPE and Equipment. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html

  5. Centers for Disease Control and Prevention. Considerations for the Care of Older Adults with COVID-19. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html#considerations-older-adults


The Scandal: Governors' Responses and Nursing Home Mortality Rate


While the state's initial response seemed adequate, the pandemic soon exposed the deep-rooted problems within the nursing home system. As the virus spread, Governor Andrew Cuomo's policies came under scrutiny, with some criticizing his mandate to send COVID-19 patients to nursing homes. The decision was made, presumably to free up hospital beds, but it had disastrous consequences. The state's nursing home mortality rate became the highest in the country, with thousands of residents succumbing to the virus.


New York Governor Cuomo, who has been praised for his handling of the COVID-19 pandemic in his state, has recently been criticized for his book deal and his relationship with nursing home owners who have donated to his campaign fund. Cuomo wrote a book about his leadership during the pandemic, which has garnered controversy as it was published while the crisis was ongoing and raised questions about using the crisis for political gain. Additionally, it was revealed that several nursing home owners who donated to Cuomo's campaign fund had received favorable treatment from his administration. This has led to criticism that Cuomo prioritized his political donors over the well-being of nursing home residents during the pandemic.


The Impact on Families of Nursing Home Residents


The pandemic took a toll on many families in the state, especially those with loved ones in nursing homes. Many had to rely on electronic devices to communicate with their family members, unable to see them physically for months. Some families lost loved ones to the virus, and their grief was compounded by the scandal's investigation.


The death toll in New York's nursing homes is one of the highest in the country and investigations have revealed several factors that contributed to this situation. One of the key factors was a state policy, which governor Cuomo later reversed, that required nursing homes to accept patients who had tested positive for COVID-19 but were medically stable. This policy was criticized for potentially exposing healthy and vulnerable nursing home residents to the virus. Additionally, the state government was slow to provide nursing homes with protective gear and testing, which could have helped contain the spread of the virus. Some nursing homes have also been accused of inadequate infection control and care for their residents. The combination of these factors resulted in thousands of deaths in nursing homes, particularly among the elderly and those with underlying health conditions.


Investigation and Consequences


The state set up an independent investigation into the nursing home scandal, and its findings were damning. The investigation concluded that the nursing home mortality rate was under-reported, with several nursing homes failing to provide an accurate picture of the situation. Furthermore, it found that some nursing homes failed in their duty to protect their residents, with inadequate staffing levels and personal protective equipment. The legal ramifications of the scandal are still ongoing, with several nursing homes facing lawsuits.


New York Attorney General Letitia James conducted an investigation into the state's nursing homes' response to the COVID-19 pandemic. The report found that the state's health department undercounted the number of nursing home deaths by up to 50%. The report also found that state policies requiring nursing homes to accept COVID-19 patients may have contributed to the spread of the virus in these facilities. The investigation also revealed that some nursing homes failed to comply with infection control protocols. The report highlighted the need for greater oversight of nursing homes by the state government.


The federal government has launched an investigation into nursing homes' response to the COVID-19 pandemic, particularly regarding their handling of the outbreak and their compliance with federal guidelines. The investigation is being conducted by the U.S. Department of Justice's Civil Rights Division and is focused on several states, including New York, New Jersey, Pennsylvania, and Michigan, which have seen significant numbers of COVID-19-related nursing home deaths. The investigation will look into whether nursing homes violated federal guidelines on infection control, as well as whether state governments misled the public about their nursing home COVID-19 death numbers. The investigation is ongoing and could result in legal action against nursing homes and/or state officials.


Gov. Cuomo gives his biggest donors, the nursing home owners, a "Get out of Jail Free Card"


Governor Cuomo issued an executive order in March 2020, which gave nursing homes immunity from lawsuits over COVID-19-related deaths and injuries, as long as they followed the state's health guidelines. This immunity protected nursing home owners and operators from legal action related to any negligence during the pandemic. Critics have referred to this order as a "get out of jail free" card for nursing home owners. In July 2020, Cuomo extended this immunity to nursing home executives and administrators. The order faced significant criticism from accountability advocates, who argued that it shielded owners from the consequences of their mistakes and could discourage nursing homes from upholding safety standards. As a result, calls for repealing the executive order have grown louder, with critics arguing that victims' families should have the right to pursue legal action against nursing homes if there was negligence or wrongful death.


Repeal of "Get out of Jail Free Card"


The long-standing controversy surrounding New York's nursing home scandal has finally led to the repeal of the immunity law for nursing homes during the pandemic. This success was due to the relentless efforts of assemblymember Ron Kim and law firms like Leitner Varughese Warywoda. The executive order issued by Governor Cuomo in March 2020 protected nursing home owners and operators from legal action related to any negligence during the pandemic. However, with the repeal of this executive order, nursing homes can no longer hide behind this immunity and must now be held accountable for their actions. This victory is a huge step forward in ensuring the safety and well-being of nursing home residents and preventing future disasters.


  1. NBC4 New York. (2021, February 13). COVID Survivor Warns Others About Symptoms and Lingering Effects. Brett Leitner, a Partner at Leitner Varughese Warywoda, weighs in on long term health effects and precautions that should be taken.

  2. Morning Consult. (2020, May 19). The COVID-19 Pandemic Is Hitting Veterans Especially Hard. Justin Varughese, a Partner at Leitner Varughese Warywoda, discusses the challenges that veterans face along with the general population during the pandemic.

  3. The Daily Beast. (2021, March 15). New York’s Nursing Home Scandal Is Just The Tip Of The Iceberg. Brett Leitner commented on the nursing home scandal in New York, criticizing governor Cuomo's handling of the situation and stating that it has highlighted the need for reform in the nursing home industry.

  4. Law360. (2020, June 2). States Can Protect Nursing Homes Without Shielding Them From Suits. Leitner Varughese Warywoda, a New York-based law firm, is mentioned in this article discussing the immunity law for nursing homes and their stance on the issue.

  5. USA Today. (2020, August 24). Lethal indifference: Disparities in COVID-19 testing, PPE distribution possible factors in veteran deaths. Justin Varughese, a Partner at Leitner Varughese Warywoda, comments on the challenges faced by veterans during the pandemic and the need for better distribution of resources such as PPE.

Conclusion


Lessons learned from the New York nursing home scandal are crucial in ensuring the safety and well-being of nursing home residents in times of a health crisis. Improved policies, adequate staffing levels, and proper training are necessary to prevent a future crisis from happening. Families must be able to trust the nursing homes that care for their loved ones, and the state must take responsibility for their actions and the consequences of their decisions.

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