Re-Examining the Cuomo Administration’s Nursing Home Policies During Covid-19
Introduction
Four-and-a-half years after the Covid-19 pandemic began, people are still reckoning with nursing home policy decisions made by New York State government officials. Critics charge that the March 25, 2020, Department of Health Advisory regarding nursing home admission policies significantly contributed to the terrible death toll in nursing homes and claim that the administration’s delayed disclosure of deaths of nursing home residents that occurred in hospitals was a cover-up.
At a federal level, the House Oversight Committee’s Select Subcommittee on the Coronavirus Pandemic (the “House Subcommittee”) continues to investigate the issue, including conducting a private deposition of former Governor Andrew Cuomo in June 2024. After the deposition, almost the entire Republican New York congressional delegation held a press conference to denounce Gov. Cuomo and New York’s nursing home policies. Gov. Cuomo is now scheduled to testify publicly before the House Subcommittee on September 10, 2024.
The controversy also continues to roil in New York. In June 2024, the Olson Group, a consulting firm commissioned by the Hochul administration, released its “After Action Report on the Covid-19 Pandemic” (the “Olson Report”). Despite its criticism of certain aspects of the state’s pandemic response, the Olson Report observed that New York’s nursing homes’ “overall outcomes were not substantially inconsistent with overall performance in such facilities nationwide”[1], and concluded that New York State’s Covid-19 nursing home policies were “consistent with universal best practices in congregate care and accurately reflected the best understanding of the scientific community at the time they were issued.”[2]
It is a sign of the stubborn nature of this controversy that the Olson Report did not settle the matter but simply led to calls for further investigations. New York State Comptroller Tom DiNapoli wrote an op-ed criticizing the Olson Report, which he concluded by saying: “It’s time for full consideration of proposed state legislation to establish an independent commission, with subpoena power, to provide the comprehensive accounting New Yorkers deserve.”[3]
Although New York’s nursing home policies during the pandemic spanned a wide range of issues from infection control to vaccinations, critics of Gov. Cuomo focus on two policy decisions. The first was a Department of Health (“DOH” or the “Department of Health”) Advisory issued on March 25, 2020 (the “March 25 Advisory”),[4] that sought to free up urgently needed hospital beds by facilitating the discharge of Covid-19 patients who were stable and no longer needed hospital care. The March 25 Advisory stated that nursing homes could not deny admission or readmission “solely on the basis of a confirmed or suspected diagnosis of COVID-19.” The second policy decision involved New York’s practice during 2020 to report only deaths that occurred within a nursing home facility as “nursing home deaths,” while reporting deaths of residents of a nursing home that occurred outside of the facility in a hospital as “hospital deaths.”
The prevailing narrative of the critics was encapsulated by comments by Congressman Michael Lawler (R-NY-17) in a press conference following Gov. Cuomo’s June 2024 deposition. Even by the shrill standards of today’s political discourse, the venom expressed towards Gov. Cuomo in that press conference was striking. Rep. Lawler said:
“Andrew Cuomo is a phony and a fraud…[A]t his directive, the Department of Health issued that memo [the March 25 Advisory] and he put our most vulnerable population at risk resulting in the death of over 15,000 seniors, and it was Andrew Cuomo who covered it up. It wasn’t just the directive which was bad enough and idiotic and resulted in the death of the 15,000 plus seniors. It was Andrew Cuomo for political purposes who directed the state government to cover up the death toll.”[5]
You would think that the passage of time would have created a more nuanced and informed view of the issues involved. But the Cuomo “nursing home scandal” is emblematic of our current state of political discourse, in which a prosecutorial mentality too often substitutes for an objective review of the evidence, facts are both distorted and conflated, and motives are invented, all while officials and staff members are demonized.
I don’t want to bury the lede. As discussed in this Commentary, there is little to no evidence that the March 25 Advisory directly increased the number of deaths among nursing home residents, and many reasons to believe that it did not. It’s impossible to prove the negative, that admissions from hospitals did not lead to any deaths in nursing homes, but by the same token, the March 25 Advisory may well have reduced the total number of deaths from Covid-19 by freeing up urgently needed hospital beds. In any event, the March 25 Advisory was an apolitical decision that was both consistent with federal guidance and supported by the public health professionals at the Department of Health.
People may question or disagree with the Cuomo administration’s decision to report only in-facility nursing home deaths until February 2021, but that decision in no way affected actions on the ground that could have impacted nursing home residents. The decision to report only the more reliable number of in-facility deaths initially reflected a prioritization of accuracy in data reporting by not double counting deaths in hospitals. But in retrospect, at least after the administration’s initial internal audit was completed at the end of August 2020, the administration would have been far better off reporting its estimate of total nursing home resident deaths that occurred in hospitals with the caveat that the reconciliation process created the possibility of double counting some hospital deaths and that further analysis was required.
In any event, the total number of Covid-19 deaths reported was accurate and the decision to report deaths based on the facility where the death occurred was without consequence because it in no way affected the State’s actions with respect to nursing homes and had no effect on nursing home resident outcomes.
The conflation of erroneous beliefs about the impact of the March 25 Advisory on nursing home resident deaths with the failure of the administration to include out-of-facility nursing home resident deaths until February 2021 is what caused the most damage to Gov. Cuomo’s reputation. As stated in a perceptive article in Syracuse.com titled “Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage,” by Tim Knauss, published on March 4, 2021, “the reality that Cuomo underreported thousands of nursing home deaths has too often blended with an unsupported assumption that his controversial March 25 directive caused those deaths.”[6]
Before examining these nursing home policy issues, I need to make a disclaimer. Gov. Cuomo is one of four governors in whose administrations I served. I worked in Andrew Cuomo’s gubernatorial campaign in 2010 and served in a few roles in his administration, including as the Deputy Secretary for Health and Human Services from 2015 until the summer of 2020, when I transferred to the Department of Health as a Senior Advisor. For reasons that are not particularly relevant here, I was only tangentially involved with the Covid-19 response and was not involved in the nursing home issues discussed in this Commentary.
This Commentary is based almost entirely on the extensive public record about the nursing home controversy. As with every Commentary I write for The Step Two Policy Project, I express my point of view, which is based on the facts presented. These facts are carefully sourced and referenced in the footnotes. People may disagree with my conclusions or observations, but the facts presented in this Commentary are just that – facts that can be verified and which are transparently disclosed.
“Revisionist history” is sometimes considered a pejorative term, but it is often important to challenge widely accepted views about past events that are based on inaccuracies or biases in existing accounts. That is what I hope to do in this Commentary. The prevailing narrative about the Cuomo administration’s nursing home policies reflects an impression of wrongdoing or errors rather than a clear understanding of the actual underlying facts. Whether or not this Commentary changes the minds of many people, in light of the continuing controversy about this issue, I think it is important to closely examine these issues to create a more accurate historical record of the events.
The Department of Health March 25 Advisory
Background
The spread of Covid-19 in New York and the State’s responses to this public health emergency have been exhaustively chronicled.[7] One is struck in reviewing these events by just how compressed the critical time period was, from March 1, 2020 when New York reported its first case, to March 25, 2020, when the number of reported cases had already exceeded 3,000 and there had been at least 200 Covid-related deaths.
The scale and speed of New York’s governmental response reflected the urgency of the crisis. Governor Cuomo declared a state of emergency on March 7, 2020, followed shortly thereafter by numerous issuances of guidance and executive orders (EO), such as EO 202.1, which began to shut down activities that could contribute to the spread of the virus. On March 16, 2020, Gov. Cuomo issued an executive order that closed schools, and on March 20, 2020, Gov. Cuomo issued the “New York on PAUSE” EO that required non-essential businesses to keep their employees out of the office and encouraged individuals to stay home. Gov. Cuomo began to hold daily briefings, which focused on the surge in cases and the ever-increasing pressure on hospitals and nursing homes to manage the emergency.
Appreciating the context of what was happening in New York in March 2020 is crucial to understanding the March 25 Advisory. Hospitals in New York were facing an unprecedented crisis as the Covid-19 pandemic hit with overwhelming speed and intensity. Downstate hospitals quickly became inundated with patients suffering from severe respiratory symptoms. Emergency departments and intensive care units were overwhelmed, with many hospitals running low on oxygen and out of drugs used in critical care (including for patients on ventilators), beds, and personal protective equipment.
Hospitals were converting any available space, from corridors to cafeterias, to create capacity for inpatient beds. Covid-19 admissions continued to rise – as they would until mid-April – and there were numerous public and private projections that the need for hospital beds would outstrip even the expanded capacity. Judgments in hindsight about the wisdom of the March 25 Advisory should acknowledge the context in which it was released and what was widely expected at the time to be an extraordinary need for inpatient hospital beds. In the midst of this chaotic environment, DOH issued the March 25 Advisory, which set forth guidance regarding the criteria for admission or readmission to a nursing home, including transfers following a discharge from a hospital, of patients who had been diagnosed and treated for Covid-19. The March 25 Advisory included the following language:
“No resident shall be denied re-admission or admission to the nursing home solely based on a confirmed or suspected diagnosis of COVID-19. (Emphasis reflects the original.) Nursing homes are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission…. As always, standard precautions must be maintained, and environmental cleaning made a priority, during this public health emergency.”[8]
There are essentially three controversies surrounding the March 25 Advisory: (i) whether the March 25 Advisory was issued at the direction of the Governor’s office, or whether it was developed by health professionals at the Department of Health; (ii) whether the March 25 Advisory required nursing homes to accept transfers of Covid-19 patients from hospitals under all circumstances, or whether the directive was subject to all the requirements of New York law that prohibited nursing homes from accepting residents for whom they could not adequately provide care; and, most critically, (iii) the extent to which the March 25 Advisory increased the number of deaths of nursing home residents by contributing to the spread of Covid-19 in nursing homes.
What was the Genesis of the March 25 Advisory?
The first controversy is whether the March 25 Advisory was issued by DOH at the direction of the Governor’s office or developed by health professionals at DOH. The central element of the March 25 Advisory, which was to facilitate the discharge of patients who were stable and no longer required a hospital level of care, emerged from a request for guidance from the trade association of the downstate hospitals regarding transfers of Covid-19 patients to nursing homes. The details of the March 25 Advisory were informed in part by daily discussions that the hospitals were holding with staff-level officials at DOH about managing the crisis. The March 25 Advisory was part of a logical progression in a response to a public health emergency that was threatening to overwhelm hospitals, as had happened elsewhere in the world.
The controversy about the genesis of the March 25 Advisory is really beside the point, since Gov. Cuomo has strongly defended the March 25 Advisory and continues to maintain that it was the right policy decision.[9] When Gov. Cuomo testified that he was unaware of the March 25 Advisory in his private deposition to the House Subcommittee, Republican members suggested he was lying about the matter. But he would have no motivation for distancing himself from the March 25 Advisory because he has embraced the policy – as have others who were involved in the policy’s development.
An important consideration of DOH staff involved determining when it was safe, from an infection prevention perspective, to discharge Covid-19 patients from hospitals when they were clinically stable and no longer needed a hospital-level of care but may have continued to test positive (because they still had detectable Covid-19 RNA).[10] The CDC began issuing interim guidance on treatment and quarantine protocols for healthcare providers to follow in January 2020. These guidance documents were continually updated to reflect the best information available.
Although the March 25 Advisory came to be seen as a critical event, in fact, it was only one of dozens of executive orders, directives, and advisories that had already been issued by DOH or the Governor’s office by that time.[11]
Was the March 25 Advisory a Mandatory “Must Admit” Directive?
The second controversy – whether the March 25 Advisory required nursing homes to accept transfers of Covid-19 patients from hospitals under all circumstances – is more nuanced. The plain language of the March 25 Advisory does not direct nursing homes to accept Covid-19 patients under all circumstances, but rather directs that admission or readmission to the nursing home “could not be denied solely based on a confirmed or suspected diagnosis of COVID-19,” while reminding nursing homes that they must maintain standard precautions.
It is also relevant that the March 25 Advisory was issued shortly after two significant guidance documents were released by the federal government. First, on March 13, 2020, CMS released additional guidance to nursing homes regarding their infection control and prevention practices to prevent the transmission of Covid-19.[12] Notwithstanding that not all nursing homes had the staffing or supplies to fully comply with the guidance, the CMS directive essentially set forth requirements for managing residents with Covid-19. With respect to the primacy of federal guidance, it should be noted that CMS regulates nursing homes, while states license the facilities and ensure their compliance with CMS regulations.
The second significant federal guidance was issued by the Centers for Disease Control and Prevention (CDC) on March 23, 2020. The primary purpose of this guidance was to facilitate transfers of asymptomatic Covid-19 patients no longer requiring hospital care to nursing homes (the “March 23 CDC Guidance”), although, as described below, it also explicitly set forth protocols to avoid transmission of infections.[13]
In addition to the plain language of the March 25 Advisory, one of the reasons DOH did not consider the March 25 Advisory to be a “must admit” order was that the policy was consistent with the March 23 CDC Guidance. Critics have emphasized that, in contrast to the general admonition in the March 25 Advisory that nursing homes needed to “maintain standard precautions” of infection control protocols, the CDC guidance provided specific instructions to prevent the spread of Covid-19 among vulnerable populations in long-term care facilities.
After stating that: “Nursing homes should admit any individuals that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was/is present,”[14] the CDC guidance then added the following language:
- “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 infection prevention and control recommendations.”
- “If a nursing home cannot implement these precautions, it must wait until these precautions are discontinued.”[15]
Although critics of the Cuomo administration have placed great weight on the semantic difference between the March 25 Advisory and the March 23 CDC Guidance, the Department of Health believed that the obligation to follow infection control protocols was implicit because of requirements of nursing homes under New York law to not accept patients they were unable to properly care for, and other DOH directives issued earlier in the pandemic regarding infection control protocols.
This was reflected, for example, in guidance DOH issued on March 11, 2020, that reminded nursing homes to maintain awareness of “necessary infection prevention and control procedures by regularly visiting the CDC and NYSDOH websites,” as well as reminding nursing home operators to “review and reinforce their infection control policies under New York state regulations.”[16] This assumption was also reflected in the language of the March 25 Advisory in the reminder that, “[a]s always, standard precautions must be maintained.”
In total, 11 other states, including California, Michigan, New Jersey, Pennsylvania, and Minnesota implemented policies substantially similar to the March 23 CDC Guidance and the March 25 Advisory. The language initially used in New Jersey was nearly identical to the March 25 Advisory statement that admission or readmission cannot be denied “solely on the basis” of the absence of a negative test for Covid-19.
Within a few weeks of the initial issuance of New Jersey’s guidance, New Jersey modified the guidance to state more explicitly that the nursing home was required to have infection control protocols in place before accepting transfers or admissions of Covid-19 patients, to prevent spread of the infection. Other states, including California and Minnesota – and by late April, New York – similarly modified their initial guidance to make this requirement more explicit. Nevertheless, there is nothing to suggest that these states, as well as New York, did not believe that the requirement of being able to properly care for transferred patients was already implicit. Rather, adding explicit language seems to have been more in the vein of reinforcement of these requirements.
In reviewing the experience of the 11 other states that similarly supported transfers of Covid-19 patients from hospitals to nursing homes based on the March 23 CDC guidance, both the criticisms of the directives and the defenses from government officials seem strikingly similar to the experience in New York. In Minnesota, for example, Department of Health Commissioner Jan Malcolm defended the policy during a Minnesota Senate hearing on the grounds that: “Staying in hospitals beyond the point where you need to be there is itself a risky thing.” She said, “[we] do believe that a skilled nursing facility is the right level of care for a lot of people leaving acute [hospital] care.”[17]
Minnesota Gov. Tim Walz said: “This was federal guidance… This was what everyone was doing. This was not a mistake. It wasn’t like no one thought about this. There was complexity in how you deal with this.”[18]
Even though the March 25 Advisory and similar guidance issued in other states were not intended to be mandates to accept transfers under all circumstances, it is fair to say that at least some nursing home operators viewed these directives as a mandate both in New York and elsewhere, even though that was not an accurate interpretation of the language. Roughly a month after issuing the March 25 Advisory, DOH issued revised guidance which made explicit the requirement that nursing homes must have the ability to prevent the spread of infection by maintaining infection control protocols as a precondition for the acceptance of transfers of Covid-19 patients from hospitals to nursing homes.[19] The March 25 Advisory was then superseded by new guidance on May 10, 2020.[20]
What is the Evidence About Whether the March 25 Advisory Increased Nursing Home Resident Deaths?
The third controversy – the extent to which the March 25 Advisory increased the number of deaths of nursing home residents – arguably is the one that matters most. Intuitively, it seems logical that transferring Covid-19 positive patients from hospitals to nursing homes would increase the number of cases and resulting deaths of nursing home residents. But upon closer examination, there are important factors that contradict this intuitive belief.
Overview of extenuating conditions
The first important factor that helps explain why these transfers do not appear to have increased the number of nursing home resident deaths to any measurable degree is that by the time these Covid-19 patients were discharged from the hospital and transferred to a nursing home, it is unlikely that they were infectious and thus capable of transmitting the virus. The Department of Health, in a report titled “Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis” (the “DOH Factors Report”), issued on July 6, 2020, found that residents were no longer experiencing symptoms requiring hospital care and were admitted to nursing homes a median of nine days after hospital admission. According to the DOH Factors Report:
“Health experts believe that individuals infected with the virus are most infectious 2 days before symptoms appear and that they are likely no longer infectious 9 days after symptom onset – thus, by the time these patients were admitted to a nursing home after their hospital stay, they were no longer contagious.”[21]
Assuming that patients were asymptomatic for two days– and given DOH data that indicated that the median length of stay in the hospital prior to discharge was nine days – the median period of time since infection was at least 11 days. Infectiousness typically peaks around three to four days after the onset of symptoms. The average duration for which a person sheds culturable virus (i.e., is infectious) is about five days from the onset of symptoms.[22]
The second important factor that helps explain why these transfers do not appear to have increased the number of nursing home resident deaths to any measurable degree is that in all but six nursing homes (out of 610 in New York), a resident or staff member of the nursing home receiving such patients had already been infected with Covid-19, which introduced the virus to the nursing home. An update to the DOH Factors Report, issued on July 17, 2020, reviewed the nursing homes that received a transfer of a Covid-19 patient and found the following:
“The new analysis shows that 304 of the 310 nursing homes [that received a transfer or other admission of a Covid patient who was not a returning resident] – or 98 percent – already had a suspected or confirmed COVID-positive resident, COVID-related confirmed or presumed fatality, or worker infected prior to admission of a single COVID-positive patient. Again, this means that for 98 percent of the facilities, the admission did not introduce COVID-19 into the nursing home because it was already present.[23]
“Of the six nursing homes that admitted a patient before there was a COVID infection of staff or residents, or fatality in that facility, in all but two cases, the timing of the subsequent Covid infection made it “highly unlikely that the admission [or transfer] caused the infection or fatality.”[24]
A third factor that could help explain why the transfer of Covid-19 patients from hospitals does not appear to have measurably increased nursing home resident deaths is that many nursing homes in New York – having already experienced outbreaks of Covid-19 – were already engaged in implementing infection control protocols, such as “cohorting” Covid-19 patients, which would minimize the spread of infection if any of the Covid-19 patients who were discharged from hospitals to the nursing home remained contagious.
Empirical Studies – The DOH Factors Report
As far as I am aware, there have only been three studies that sought to determine the impact on nursing home deaths in New York of admissions of Covid-19 patients pursuant to the March 25 Advisory. These are the DOH Factors Report, a study conducted by Bill Hammond of the Empire Center (the “Empire Center Study”), and the third was a review of the Empire Center Study by a retired professor and government official named John Bacheller, who empirically analyzes public policy issues on his website called “Policy by Numbers: Data For Evidence-Based Policy.”[25]
The DOH Factors Report was prepared in response to criticisms of the March 25 Advisory.[26] The main conclusion of the DOH Factors Report was that: “Admission policies were not a significant factor in nursing home fatalities;” and, “The data do not show a consistent relationship between admissions and increased mortality.”[27] The DOH Factors Report based its conclusion primarily on two observations. First, the fact that deaths in nursing home facilities peaked prior to the time that admissions stemming from the March 25 Advisory could have contributed to nursing home deaths; and the fact that the Covid-19 virus was already present in all but six of the nursing homes that received a transfer or made a resident admission pursuant to the March 25 Advisory.
The DOH Factors Report came under heavy criticism when the New York Times reported that the final version released to the public had been edited by individuals in the Executive Chamber. [28] The exact changes made in the editing process are not publicly known. Both the Assembly Impeachment Investigation Report and the Office of the State Comptroller Audit (“OSC Audit”) (discussed below), described tensions that had developed between DOH staff and the Executive Chamber during the response to the pandemic. These tensions were reflected in the preparation of the final DOH Factors Report. According to the Assembly Impeachment Investigation Report: “While many of the DOH employees’ most pressing concerns regarding drafts of the DOH Report were addressed prior to publication, other concerns with the nature of the DOH Report remained.”
However, based on the Assembly Impeachment Report, the substantive difference between the initial DOH document and the final DOH Factors Report appears to have been whether to disclose out-of-facility nursing home deaths, which would have increased total nursing home deaths from approximately 6,500 to an estimate of approximately 10,000. The Assembly Impeachment Investigation Report took pains to point out that its investigators found no one at DOH who challenged the central conclusion of the DOH Factors Report that asymptomatic infections among nursing home staff were the primary cause of nursing home infections.
The Executive Chamber’s mere involvement has been used to discredit the DOH Factors Report. This is unfortunate, because its involvement did not affect the conclusion that the March 25 Advisory was not a significant factor in nursing home resident deaths and that there was no consistent relationship between admissions of Covid patients and nursing home deaths. Moreover, the Executive Chamber’s involvement did not affect the most important fact disclosed in the DOH Factors Report, which was that Covid-19 was already present in all but six nursing homes in New York State that received a transfer of a Covid-19 hospital patient – a fact that is undisputed.
Empirical Studies – Bill Hammond’s Empire Center Study
The second study that sought to empirically identify the impact of the March 25 Advisory on nursing home deaths was written by Bill Hammond of the Empire Center, with the assistance of a statistician named Ian Kingsbury. The study was published on February 18, 2021, in a blog post titled “COVID-positive Admissions Were Correlated with Higher Death Rates in New York Nursing Homes” (the “Empire Center Study”).[29]
I have known Bill Hammond since 2007, when he was writing a column on New York State government for the New York Daily News. Bill is among a small fraternity of researchers who generate sophisticated analyses about New York State government policy issues. To his credit, Bill shared with me the data on nursing home admissions and readmissions during the period that the March 25 Advisory was in effect. DOH released this information to the Associated Press through a FOIL request but has not made the data publicly available. The Empire Center study made Bill an important participant in the New York nursing home controversy.
Bill Hammond’s later testimony before the House Select Subcommittee on August 17, 2021,[30] reads like a prosecutorial brief and reflects the extent to which he views the March 25 Advisory and the delay in reporting out-of-facility nursing home resident deaths as two sides of the same coin. He leaves no room for reasonable alternative interpretations that explain the administration’s actions and decisions. Hammond’s testimony suggests that his suspicions about the connection between these two policies were deepened by his inability to get information about nursing home deaths by facility pursuant to FOIL requests, which led to a court order directing DOH to release more information.
The actual conclusions of the Empire Center Study were far more modest than the impression it created. The Empire Center Study found that “transfers from hospitals to nursing homes were not significantly associated with nursing home deaths downstate (emphasis added), “where the population-wide infection rate was exceptionally high during the period in question.”[31] The Empire Center Study did, however, conclude that there was a correlation between admissions from hospitals to nursing homes and subsequent fatalities in upstate nursing homes.[32] Only 27 out of 312 nursing homes upstate (defined by Hammond as the 54 counties north of New York City, Nassau, Suffolk, and Westchester) received a total of 509 new admissions from hospitals of patients who had been treated for Covid-19during the 45-day period that the March 25 Advisory was in effect. Specifically, based on a regression analysis, the Empire Center Study found that in upstate nursing homes, “each new admission of a COVID-positive patient correlated with 0.62 additional deaths, with a margin of error of plus or minus 0.17.”[33] (Emphasis added)
Taken at face value, this analysis suggested in the study concluded that for every 100 transfers during the period from March 25 through May 8, there would be 62 additional deaths (subject to the margin of error) between April 12 and June 4 (the period of time during which deaths associated with admissions under the March 25 Advisory would have occurred) than would have been the case in the absence of such admissions – or approximately 300 additional deaths out of the 9,110 nursing home deaths (including out-of-facility deaths) that occurred in New York between April 12 and June 4.
The Empire Center Study acknowledged the limitations of its analysis, writing:
“As with any such analysis, the results should be viewed with caution. Even a statistically significant correlation between two factors does not necessarily mean that one caused the other. The available data were also limited in potentially important ways…. possibly relevant factors, such as the relative quality of care provided in the nursing homes and the average acuity of their patients’ condition, were beyond the scope of this review.”
But given how small the sample size is for the Empire Center Study’s conclusion, there were other confounding factors that influence the result. One anomalous factor that is known from public reporting is that at least two of the nursing homes in Onondaga County, which collectively accounted for more than 10% of the upstate deaths in nursing homes that receive Covid-19 admissions, had separate isolation facilities for Covid-19 patients. As reported on Syracuse.com:
“Bishop and Loretto – the two facilities that took in hospital patients – accounted for 46 deaths. Both nursing homes had established separate units in their buildings where Covid-19 patients were isolated with negative-pressure ventilation to prevent the virus from spreading….
“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,” [Julie Sheedy, a Loretto official], said.
“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, according to previous news reporting. 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.”[34]
Another outlier in the upstate data involves the Father Baker Manor nursing home in Erie County, which is part of the Catholic Health System of Western New York (the “Catholic Health System”). The Catholic Health System converted a closed nursing home facility called St. Joseph’s Post-Acute Care Center and operated it as a Covid-only nursing home under the license of Father Baker Manor. Of the 78 deaths recorded under the Father Baker Manor license during the relevant March 25 Advisory time period, 48 actually occurred at the St. Joseph’s Covid-only nursing home.[35]
In total, out of the approximately 300 deaths in upstate nursing homes that the Empire Center Study analysis suggested were associated with the March 25 Advisory, 98 such deaths occurred in isolation units or facilities at these three nursing homes in Onondaga and Erie County, which makes it highly unlikely that these deaths were attributable to transmission of infections from other nursing home residents who had been admitted from hospitals with Covid-19. If a review was conducted of the other 24 upstate nursing homes that received Covid-19 admissions, some of them may also have had practices that undermine the hypothesis that the admissions resulted in deaths of other nursing home residents.
The point is not to prove that not a single nursing home death upstate could be attributed to admissions of Covid-19 patients transferred from hospitals. Rather, it is to suggest that the evidence of correlation is weak at best, and in a number of cases, there were facility-specific factors and other causes that suggested that the nursing home resident deaths were unrelated to Covid-19 admissions under the March 25 Advisory.
Given that the Empire Center Study found no correlation between admissions and deaths in downstate nursing homes and the inherent uncertainty of an empirical analysis upstate, the Empire Center Study could have done more to emphasize the part of its conclusion that “the March 25 memo was not the sole or primary cause of the heavy death toll in nursing homes.” Instead, it drew a conclusion that, on a statewide basis, the March 25 advisory was “associated with several hundred and possibly more than 1,000 additional resident deaths.” The Empire Center Study does not explain how it arrived at such a statewide estimate when it concluded that downstate nursing home deaths were not statistically correlated with admissions of Covid-19 patients from hospitals.
It is difficult to overstate the importance of the Empire Center Study in cementing the narrative that the March 25 Advisory significantly contributed to nursing home resident deaths and, especially, that the decision to report only in-facility nursing home deaths was a cover-up. By putting a specific number on the number of deaths “associated” with admissions of Covid-19 patients from hospitals – knowing that despite all the data caveats, the statement would be interpreted as proof of causation – the Empire Center study purposefully created an impression of certainty that was unwarranted and which quickly became a central part of the narrative about the March 25 Advisory.
The New York Post headline read, “Cuomo policy may have led to over 1,000 nursing home deaths, watchdog says.”[36] Predictably, the Empire Center’s caveat about the reliability of its correlation analysis was repeated deep within the story.
In the Wall Street Journal, the opinion writer James Freeman wrote: “The Empire Center’s new analysis of long-hidden data suggests that a key Cuomo policy had disastrous results in the spring of 2020.” He added that:
“The governor has presented the scandal as simply a debate about the way deaths were categorized, while rejecting the notion that his policies increased mortality. His position will be harder to maintain after Thursday’s release of a new study from New York’s Empire Center for Public Policy.”[37]
Empirical Studies – John Bacheller’s Review of the Empire Center Study
John Bacheller developed his own statistical analysis of the correlation between admissions of Covid-19 patients from hospitals during the time the March 25 Advisory was in effect and also reviewed the Empire Center Study.[38] Although his analysis received little attention, it is a valuable independent and statistically-based study of the effect of the March 25 Advisory. Given that most people aren’t familiar with Bacheller’s analysis, I will extensively quote directly from his analysis here.
To begin with, Bacheller also arrived at the conclusion that there was no statistically significant correlation between the March 25 Advisory and deaths of nursing home residents in the downstate region. He wrote:
“Given that the strength of the association between COVID-positive admissions is so weak — only one percent of deaths are associated with COVID-positive admissions — and that the relationship was not statistically significant, I conclude that the Health Department mandate that nursing homes accept COVID-positive residents did not result in more deaths in the New York metropolitan area.”[39]
Bacheller also undermined the validity of the Empire Center Study statewide model, which was the basis for the conclusion that the March 25 Advisory “possibly resulted in 1,000 deaths or more – which was the number the press and other critics had latched on to.” Bacheller wrote that the larger number of deaths was “unlikely” given the very weak strength of the association in downstate nursing homes when compared to the number of deaths in the upstate region where there was a statistically significant correlation.
Bacheller noted a methodological flaw in the Empire Center Study, which was that:
“Hammond and Kingsbury’s analysis does not subtract the deaths of newly admitted COVID-positive residents from their estimate of COVID deaths at the facilities. The deaths of people who were already COVID-positive could not be caused by the potentially COVID spreading effect of the Health Department mandate.”
With this adjustment, Bacheller wrote: “The exclusion of possible deaths of newly admitted COVID-positive residents slightly reduces the estimated deaths in Upstate nursing homes, from 283 to 258, with a range within 95% confidence limits of 205 to 310.”[40]
It should be noted, however, that Bacheller’s analysis did not take into account the confounding factor of 98 deaths in just three nursing home facilities that had separate isolation units or facilities, which casts doubt on the validity of even his lower estimate of upstate nursing home deaths associated with the March 25 Advisory.
Part of the challenge in fairly assessing the impact of the March 25 Advisory is that information that could shed light on the issue has not been made public by the Department of Health. To the extent that the impact of admissions pursuant to the March 25 Advisory continues to be a focal point of the nursing home policy controversy, DOH should release this data and add it to the already existing Covid-19 nursing home data available on the DOH website. DOH should also make public the original paper that was written by DOH public health staff members (with the assistance of McKinsey & Co.) that served as the foundation for the DOH Factors Report.
What did Official Reports Say about the Impact of the March 25 Advisory?
Notwithstanding the intensity of criticism of the March 25 Advisory among elected officials and the press, official reports on New York’s nursing home policies during the Covid-19 pandemic either did not find fault with the March 25 Advisory or were muted in their criticism. For example, the January 2021 report by New York Atty. Gen. Letitia James, titled “Nursing Home Response to [the] Covid-19 Pandemic” (the “January OAG Report), stated that “government guidance [i.e., the CDC guidance and the March 25 Advisory] requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities….” (Emphasis added.) It should be noted again that the March 25 Advisory did not require the admission of Covid-19 patients into nursing homes, but rather said that admission could not be denied solely on the basis of a Covid-19 diagnosis.
Notwithstanding the comment that guidance from CDC and DOH “may have put residents at increased risk of harm in some facilities, the January OAG Report made the following observation regarding the criticism of the March 25 Advisory:
“[T]he 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 is worth noting that 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. This is because 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.”[41]
Another official assessment of the impact of the March 25 Advisory (ironically) is the November 2021 New York State Assembly’s “Impeachment Investigation Report to Judiciary Committee Chair Charles Lavine and the New York State Assembly Judiciary Committee,” (the “Assembly Impeachment Investigation Report”), which stated:
“We note that our investigation did not uncover evidence to suggest that the March 25, 2020 directive, which addressed the admission or readmission of nursing home residents who had been diagnosed with COVID-19 (the “March 25 Directive”), increased the number of COVID-19 fatalities in nursing homes (emphasis added). Similarly, based on our investigation – which did not involve an independent medical assessment – 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. We note that many of the decisions regarding the pandemic and related policies were made in the context of a once-in-a-century event that was fastmoving and presented significant challenges.”[42]
Reporting of Nursing Home Deaths
Background
The second branch of the controversy surrounding the Cuomo administration’s nursing home policy during the Covid pandemic is the assertion that the number of nursing home deaths in New York was misrepresented by including only deaths within nursing home facilities as “nursing home deaths,” while counting deaths of nursing home residents in hospitals as “hospital deaths.” As with the March 25 Advisory, there’s a good deal of conflation of facts surrounding the issue of the reporting of nursing home deaths, with minor and temporary inaccuracies in the reporting of nursing home deaths in nursing home facilities being conflated with the methodology decisions of whether to include, first, “presumed” as well as “confirmed” deaths, and then whether to include out-of-facility deaths of nursing home residents.
This conflation created the impression that the Cuomo administration sought to downplay the number of nursing home deaths from the beginning of the pandemic. In reality, the Cuomo administration was intensely focused on providing real-time data on Covid-19 deaths. Unsurprisingly, however, new data collection systems that were built on the fly, combined with the reliance on reporting from overstretched nursing home and hospital staff, led to data integrity issues (including whether a nursing home resident had died in the hospital) that persisted into the summer of 2020. Even so, to some extent in August 2020, enough reconciliation had been performed that DOH would have been able to provide a fairly accurate estimate of the number of out-of-facility deaths.
In hindsight, given the damage caused by the perception that New York’s convention of reporting nursing home deaths was a cover-up designed to make New York’s performance involving nursing homes look better and to diminish the perceived impact of the March 25 Advisory, the Cuomo administration clearly would have been wiser to provide an estimate of the number of nursing home residents who died in hospitals with the appropriate caveats about data limitations.
Gov. Cuomo said as much when the controversy metastasized in early 2021. At a press conference on February 15, 2021, weeks after the release of the OAG Report, he acknowledged that the administration should have released “as much information as we could as quickly as we could.”[43] He later “conceded that the failure to answer questions from state lawmakers and the news media had created a void ‘filled with skepticism, and cynicism, and conspiracy theories which furthered the confusion.’”[44]
What gets lost in the rehashing of the reporting decision and speculation about motives for the decision is that no one has plausibly argued that New York’s reporting convention in any way affected actions on the ground or understated the total number of Covid deaths in New York. Instead, this self-inflicted wound has been weaponized to support the false impression that the administration’s actions significantly contributed to the nursing home death toll in New York.
Finally, if the decision to only count in-facility nursing home resident deaths was a cover-up, it was a cover-up conducted in plain sight. As described below, there was no deception that New York was only including in-facility nursing home resident deaths. Instead, there was great frustration on the part of elected officials and the press that New York was not disclosing at least its best estimate of the number of out-of-facility nursing home resident deaths.
This frustration led to a contentious New York State Senate hearing in early August 2020 in which DOH officials declined to provide any estimate of the number of out-of-facility deaths and the subsequent written request for the information. On August 26, the US Department of Justice sent a letter to New York and three other states with Democratic governors (New Jersey, Michigan and Pennsylvania) that had a nursing home admission criteria directive similar to New York’s, requesting additional information on nursing home fatalities. And by Thanksgiving, the second wave of Covid-19 arrived in New York and the administration began a massive rollout of a Covid-19 vaccine.
Although the nursing home controversy was bubbling below the surface in late 2020, it was three pivotal events in early 2021 that established the damaging narrative that plagues Gov. Cuomo to this day. The first event was the report on Covid-19 and nursing homes released by the New York State Attorney General in January 2021. That was followed by the publication by the New York Post on February 11, 2021, of a leaked transcript of a Zoom call with legislators that discussed the administration’s reasons for delaying the release of data on nursing home deaths. This was followed by the publication of the Empire Center study on February 17, 2021, which would cement the narrative of a connection between the March 25 Advisory and the decision to delay releasing the number of out-of-facility nursing home deaths.
The 2021 Office of the Attorney General Report
The investigative nature of the report of the OAG Report, which estimated the number of out-of-facility nursing home deaths as being roughly 50% of the number of in-facility deaths, heightened the perception that data was being hidden and triggered a firestorm of criticism of the administration.
The primary focus of the OAG Report was to analyze potential contributors to nursing home deaths, such as noncompliance with infection control protocols, quality ratings, and personal protective equipment and staffing shortages. But what registered with the public was the OAG Report’s estimate of out-of-facility nursing home deaths (based on a survey of about 10% of New York’s nursing homes) and a linkage to the March 25 Advisory that included a highly inaccurate and misleading statistic.
The OAG Report said that based on “DOH publicized data, 4,000 nursing home deaths occurred after the issuance of the March 25 guidance, including some in 323 facilities that apparently had no reported COVID-19 infections before receiving admissions or re-admissions of hospital residents who had been diagnosed with COVID-19.”[45] In fact, based on the DOH Factors Report, only six nursing homes had no reported Covid-19 infections before receiving admissions or re-admissions of hospital residents who had been diagnosed with Covid-19.
The OAG Report triggered an avalanche of press coverage that featured the misleading narrative that the Cuomo administration’s reporting convention was a cover-up related to the March 25 Advisory, which seemed to confirm the worst suspicions of critics of the Cuomo both about the March 25 Advisory and its unwillingness to disclose the estimated number of out-of-facility deaths of nursing home residents.
A New York Post story was typical of press coverage. It said:
“The report further notes that at least 4,000 residents died after the state issued a controversial, March 25 Cuomo administration mandate for nursing homes to admit “medically stable” coronavirus patients — which James said ‘may have put residents at increased risk of harm in some facilities.’”[46]
Zoom call with state legislators
Following the release by DOH of the total number of nursing home deaths (including out-of-facility deaths) on February 3, 2021, top aides of Gov. Cuomo held a Zoom call with State legislators to answer a wide range of questions, including why the administration had taken so long to provide this information to State legislators pursuant to their August 2021 information request.
Cuomo’s top aide responded by saying that the administration deferred providing data on the total number of nursing home deaths by facility to the legislature because it was prioritizing the DOJ request and was concerned that any inconsistencies in the data would be used against New York in a politically motivated investigation by the Trump administration. The suggestion that the administration was holding onto this information – for whatever reason – was sharply criticized.
The Release of the Empire Center Study
As described above, when the Empire Center Study was published on February 17, 2021, it seemed to establish a motive for the delay in releasing information. Critics also seized on a contract Gov. Cuomo had entered into in 2020 for a book on New York’s response to the Covid-19 pandemic as yet another motive for not disclosing information that could reflect badly on the administration’s decisions during the pandemic.
The combination of these factors turned the controversy over these nursing home policy decisions into a full-blown scandal. CNN reported that the US Attorney’s office for the Eastern District of New York and the FBI had launched an investigation into the reporting of nursing home deaths[47] – investigations that came to nothing after extensive interviews of DOH and Executive Chamber staff, but still generated the type of speculation and reputational damage that always accompanies a law enforcement investigation.
Although Gov. Cuomo’s approval ratings remained strong, the blood was now in the water. CNN reported: “Cuomo’s rivals in the increasingly progressive state legislature, which is now home to Democratic supermajorities in both chambers, have been emboldened by the growing sense of scandal.”[48]
It has long been remarked that since Watergate, the press views all issues through the prism of scandal and controversy, and that has become only truer over time. The prism of scandal through which the New York nursing home policy issues came to be viewed obscured the real stakes involved. The specific facts regarding these nursing home policy decisions became lost in a fog of perception that something wrong had been done and that someone – in this case Gov. Cuomo – should be held responsible for some of the pain of Covid-19.
Although issued after Gov. Cuomo’s resignation in August 2021, two other official reports are an important part of the factual record regarding the Cuomo administration’s actions and decisions with respect to these nursing home policies.
Impeachment Investigation Report to the New York State Assembly Judiciary Committee
The Impeachment Investigation Report, prepared by the prominent law firm Davis Polk & Wardwell LLP and issued on November 22, 2021, is significant both with respect to the March 25 Advisory and the issue of reporting nursing home deaths. As quoted above, the report made clear that Davis Polk did not find evidence that the March 25 Advisory had an impact on nursing home deaths, nor did it find that “any Executive Chamber, Task Force, or DOH employee with whom we spoke disagree[d]” with the “central conclusion of the DOH [Factors] Report that COVID-19 was likely introduced into nursing homes by infected staff.”[49]
With respect to the reporting of nursing home resident deaths, the Impeachment Investigation Report sought to “assess whether the former Governor directed his staff to inappropriately withhold or misrepresent information regarding the effects of COVID-19 on nursing home residents in New York.”[50] The report acknowledged that the DOH Factors Report “labeled the ‘nursing home’ fatalities as including ‘confirmed and presumed fatalities, NH population only in NH facilities,’” but then concluded that:
“Although the description of the data was technically accurate, the DOH [Factors] Report could have been more transparent regarding the number of nursing home residents who had died as a result of COVID-19, by either disclosing out-of-facility deaths or explaining why those deaths were not included in the report.”[51]
Given its conclusion that the DOH Factors Report was accurate but “could have been made more transparent,” the only way in which the nursing home issue could have supported a narrative for impeachment is if the investigation found that the failure to be transparent was essentially a cover-up. On this issue, Davis Polk & Wardwell found that DOH officials wanted to disclose the higher number that included out-of-facility deaths in July or August 2021, while the Executive Chamber wanted to publicly report only confirmed and presumed resident deaths within the nursing home facility. On the crucial question of motivation, the Impeachment Investigation Report said:
“Certain witnesses have explained that there are multiple possible reasons for choosing to report in-facility deaths only, including questions regarding the reliability of data regarding out-of-facility deaths, which was more difficult to collect and verify than data regarding in-facility deaths. [O]ther witnesses explained that a reason for including in-facility deaths only was because including the higher number would have distracted from the overall message of the DOH Report and would have also been inconsistent with data that had been publicly reported at the relevant time.”[52]
Whether the decision to delay reporting out-of-facility deaths was simply to prioritize data integrity by not reporting any numbers that had not been fully reconciled to avoid double counting or other inaccuracies, or to help shape public perceptions of the Cuomo administration’s nursing home policies, it was a fateful decision that did not work in the administration’s favor.
The 2022 Audit by the Office of the State Comptroller
The most extensive review of the Cuomo administration’s policy with respect to reporting nursing home deaths is the Audit by the Office of the State Controller titled “Use, Collection and Reporting of Infection Control Data”(the “OSC Audit”), issued on March 15, 2021.[53] The OSC Audit ostensibly was focused on whether, during the period from January 2017 through November 2021, DOH was collecting necessary data to make informed decisions about infection control policies, as well as “whether the data collected by the department, including data reported to the public [was] accurate and reliable.”
Although the primary focus of the OSC Audit purported to be whether DOH data collection and analysis processes prior to the Covid-19 pandemic would have enabled the State to better respond to the crisis, the audit report soon makes clear that its primary interest is in criticizing the Cuomo administration’s policy of limiting its reporting of nursing home deaths to deaths within the nursing home facility.
The OSC Audit made much of data errors in the earliest part of the Covid-19 pandemic, when DOH was relying on telephonic communication with nursing homes to understand the death count in nursing homes in something close to real time. The Audit did not seem to accept the explanation of DOH officials with respect to both data errors and changes in methodology during the first 10 weeks of the pandemic that:
“’‘[A]t that time, the numbers were constantly changing due to the frequent reconciliations being performed on the number of deaths reported, and that the numbers reported publicly were the deaths that had been reconciled with external data.’”[54]
The Department of Health forcefully responded to the findings and conclusions of the OSC Audit in its official “Comments” on the audit (the “DOH OSC Comments”). It is important to remember that by the time DOH was responding to the OSC Audit, Gov. Cuomo had resigned and DOH was submitting its comments under the auspices of the Hochul administration.
The DOH OSC Comments pointed out that:
“The draft report does not address the practical challenges that the department… [e]ncountered from the earliest days of the Covid-19 pandemic to gather time sensitive in comprehensive infection, mortality and personal protective equipment information that was not available using the traditional data collection methods historically used to monitor and combat infectious diseases or track mortality data.… The department was required to make pragmatic decisions to meet the need for daily, real time information and the department moved quickly to repurpose and augment New York‘s existing systems to gather the information it needed from nursing homes and hospitals.”[55]
If you put aside the issue of whether the Cuomo administration chose to report nursing home deaths in the way that it did to make its nursing home performance look better, the central question is whether not counting deaths of nursing home residents outside of the nursing home (almost always in hospitals) had an impact on State actions on the ground.
The DOH OSC Comments asserted that OSC was implying that its data collection and analysis practices both prior to and during the Covid-19 emergency, to which OSC, in its official reply to the DOH OSC Comments, by saying:
“[T]he report does not state or imply [that] ‘the collecting data in a different manner prior to the pandemic‘s outbreak or public reporting that information differently during the pandemic could have altered the course of the pandemic in New York.’ Rather, we state…throughout the report, that better data analysis and data reliability efforts might have allowed the department more effectively use resources at its disposal for day-to-day operations and in response to public health emergencies.”[56]
The DOH OSC Comments later added:
“[W]hile the draft report criticizes the prior [Cuomo] administration for a lack of transparency, and not disclosing more information, none of the reports that were made to the public under the department’s purview are false or inaccurate, as the Draft Report now implies. All reports issued by the Department plainly identified the data sources they included and were accurate, a fact that the New York State Assembly‘s investigative report has acknowledged.“[57]
OSC’s response to this DOH Comment was simply: “We found that the reports of deaths were inaccurate for the period April 15 to May 2, 2020.”[58]
Conclusion
There have been few issues in New York State government as heated as the controversy regarding the Cuomo administration’s nursing home policies during the Covid-19 pandemic – specifically the March 25 Advisory and the decision until February 2021 to include deaths of nursing home residents in hospitals under “hospital deaths” rather than “nursing home deaths.”
Most of the underlying facts are not in dispute. What is in dispute is the interpretation of those facts: most critically, the extent to which the March 25 Advisory and the nursing home death reporting convention were consequential in terms of the State’s Covid-19 response and the extent to which the March 25 Advisory resulted in additional deaths of nursing home residents.
It is difficult to be objective and dispassionate when the subject is the loss of life of vulnerable individuals such as nursing home residents. I hope the analytical tone of this Commentary does not suggest in any way that every life lost to the Covid-19 pandemic was not a grievous loss. I am often reminded of a comment by a Swedish physician, who said, “To die alone and out of breath is a terrible death” – as indeed it was.
But given the intensity of the ongoing controversy, it is important to dispassionately review the public record about these issues. It is important to be reminded that no one who has studied this issue has concluded that the March 25 Advisory accounted for more than a small percentage of deaths of nursing home residents in New York. This Commentary reviews evidence and analyses that suggest that reaching any numerical conclusion about the March 25 Advisory directly leading to additional nursing home deaths is unwarranted.
With respect to the controversy regarding the delay in reporting out-of-facility deaths of nursing home residents, the critical issue for me is that no plausible case has been made that the State would have acted any differently with respect to nursing homes if it had been reporting out-of-facility resident deaths under nursing home deaths from the beginning of the pandemic. And the fact remains that the total number of Covid-19 deaths reported by the Cuomo administration was fully and accurately recorded between nursing home and hospital deaths, which has never been in dispute.[59] Although the delay in reporting out-of-facility deaths of nursing home residents was damaging because it created the perception that something wrong has been done that was now being covered up, it simply had no impact on the facts on the ground.
In hindsight, it’s hard not to see the Cuomo nursing home scandal as a kind of perfect storm with cascading events.
- The March 25 Advisory seemed to create a scapegoat for the tragedy of thousands of nursing home deaths.
- The reluctance of the Cuomo administration to report out-of-facility nursing home resident deaths for fear of reporting a number that could later prove inaccurate became a self-inflicted wound, since by the summer of 2020, the administration would have been better served by releasing its best estimate of the total number of nursing home deaths.
- The manner in which the approximate number of nursing home deaths became public – an “investigation” by the Attorney General – coupled with the release of the Empire Center Study, which created the impression that the March 25 Advisory caused many nursing home deaths, appeared to create a motive for why the Cuomo administration would “cover-up” the total number of nursing home deaths.
- The fact that Gov. Cuomo had received a book contract to write about his experience during the pandemic provided more fodder for the cover-up narrative.
The intense focus of the press and elected officials was fueled, in part, by long-standing grievances with Gov. Cuomo. And the fall from grace was more precipitous because of the heights Gov. Cuomo’s reputation had reached in the early months of the crisis.
Given the ongoing interest in this topic, it is likely that more facts will emerge over time and more sophisticated empirical analysis of the impact of the March 25 Advisory may, or may not, be conducted. I hope that this Commentary will add perspective on an issue that continues to create more heat than light.
Paul Francis
September 5, 2024
Paul Francis is the Chairman of the Step Two Policy Project. He served as the director of the Budget in 2007 and as the Deputy Secretary for Health and Human Services from 2015 – 2020, among other government positions. The Step Two Policy Project is a policy think tank that focuses on issues involving health, behavioral health, and human services in New York. We work to accelerate the adoption of good ideas. This commentary and other writings by the Step Two Policy Project are also published on the Step Two Policy Project website.
[1] “New York State Covid-19 After Action Report.” Prepared by the Olson Group. June 2024. See p. 4: https://www.olsongroupltd.com/wp-content/uploads/2024/06/NYS-COVID-19-After-Action-Report-06142024-FINAL.pdf
[2] Ibid, p. 57.
[3] “Commentary: New York needs an independent commission to review state’s COVID response.” Thomas P. DiNapoli. Albany Times Union. July 25, 2024. https://www.timesunion.com/opinion/article/n-y-needs-independent-commission-review-state-s-19591814.php
[4] “Advisory: Hospital Discharges and Admissions to Nursing Homes.” New York State Department of Health March 25, 2020. https://skillednursingnews.com/wp-content/uploads/sites/4/2020/03/DOH_COVID19__NHAdmissionsReadmissions__032520_1585166684475_0.pdf
[5] “Representatives Lawler and Stefanik News Conference on Former Governor Cuomo Deposition.” June 11, 2024. https://www.c-span.org/video/?536301-1/representatives-lawler-stefanik-news-conference-governor-cuomo-deposition
[6] “Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage.” Tim Knauss. Syracuse.com. March 4, 2021. https://www.syracuse.com/news/2021/03/why-cuomos-death-order-didnt-really-cause-nys-nursing-home-carnage-a-reality-check.html
[7] See, e.g., The New York Times Magazine’s “Oral History of Covid-19.” https://www.nytimes.com/interactive/2023/02/22/magazine/covid-pandemic-oral-history.html
[8] “Advisory: Hospital Discharges and Admissions to Nursing Homes.” New York State Department of Health March 25, 2020. https://skillednursingnews.com/wp-content/uploads/sites/4/2020/03/DOH_COVID19__NHAdmissionsReadmissions__032520_1585166684475_0.pdf
[9] Video, “Politics, Policy and the Pandemic: Four Years Later.” Andrew Cuomo. June 11, 2024. https://www.youtube.com/watch?v=lph04OddVR0
[10] “Prolonged PCR positivity in elderly patients infected with SARS-CoV-2.” Annaleise R. Howard-Jones, Susan Maddocks, Kerri Basile, Dominic E. Dwyer, James Branley, and Jen Kok. September 23, 2021. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8457930/
[11] Over the course of the pandemic, it was only one of 480 State-issued policies and directives associated with the health and human services sector during the pandemic, of which 106 policies or directives were related to skilled nursing facilities, rehabilitation facilities, congregate care and long-term care facilities.
See New York State Covid-19 After Action Report, prepared by the Olson Group, June 2024, at page 59: https://www.olsongroupltd.com/wp-content/uploads/2024/06/NYS-COVID-19-After-Action-Report-06142024-FINAL.pdf
[12] “Guidance for Infection Control and Prevention of Coronavirus Disease 2019
(COVID-19) in Nursing Homes (REVISED).” Centers for Disease Control and Prevention (CDC). March 13, 2020. https://www.cms.gov/files/document/3-13-2020-nursing-home-guidance-covid-19.pdf
[13] “Discontinuation of Transmission-Based Precautions and Disposition of Patients with COVID-19 in Healthcare Settings (Interim Guidance)”. Centers for Disease Control and Prevention (CDC). March 23, 2020. http://web.archive.org/web/20200324163418/https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-hospitalized-patients.html
[14] Ibid.
[15] Ibid.
[16] DAL [DEAR ADMINISTRATOR LETTER] NH 20-04 COVID-19 Guidance for Nursing Homes – REVISED. New York State Department of Health. March 11, 2020. https://www.health.ny.gov/professionals/nursing_home_administrator/dal/docs/dal_nh_20-04.pdf
[17] “Walz has no regrets about COVID-19 nursing home policies.” Anthony Gockowski. Alpha News. August 31, 2022. https://alphanews.org/walz-has-no-regrets-about-covid-19-nursing-home-policies/
[18] “Walz: ‘This was not a mistake’ to discharge COVID-19 patients into home.” Paul John Scott. Park Rapids Enterprise. May 27, 2020. https://www.parkrapidsenterprise.com/newsmd/walz-this-was-not-a-mistake-to-discharge-covid-19-patients-into-homes
[19] Dear Administrator Letter. New York State Department of Health. April 29, 2020. https://www.manatt.com/Manatt/media/Documents/Articles/NH-Letter-Regarding-Residents-4-29-20.PDF
[20] A Governor’s Executive Order, 202.3, that was issued on May 10, 2020, and which was followed by a Dear Administrator Letter from DOH on May 11, 2020 – titled “ACF DAL #20-14, NH-20-07 Required COVID-19 Testing for all Nursing Home and Adult Care Facility Personnel” – included the requirement for a negative Covid-19 test prior to discharge from hospital to a nursing home.
[21] See p. 5: New York State Department of Health, “Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis,” July 6, 2020 (revised July 17, 2020, and February 11, 2021). Unfortunately, DOH has not made public more detailed information about the number of days from the initial infection of patients who were transferred from nursing homes, so we don’t know the distribution of transfers below the median of nine days after hospital admissions.
[22] “Real-world study details average duration of infectiousness for COVID-19.” Emily Head and Ryan O’Hare. Imperial College London. August 18, 2022. https://www.imperial.ac.uk/news/239213/realworld-study-details-average-duration-infectiousness/
[23] Ibid, p. 34.
[24] Ibid, p. 34.
[25] “Policy by Numbers.” John Bacheller. https://policybynumbers.com/about-me
[26] The DOH Factors Report is discussed in some detail in the Assembly Impeachment Investigation Report that was prepared by the law firm Davis Polk based on extensive interviews with DOH and Executive Chamber personnel and reviews of documents.
[27] DOH Factors Report, p. 21.
[28] “Cuomo Aides Rewrote Nursing Home Report to Hide Higher Death Toll.” J. David Goodman and Danny Hakim. The New York Times. https://www.nytimes.com/2021/03/04/nyregion/cuomo-nursing-home-deaths.html
[29] “COVID-positive Admissions Were Correlated with Higher Death Rates in New York Nursing Homes,” by Bill Hammond and Ian Kingsbury, February 18, 2021, https://www.empirecenter.org/publications/covid-positive-admissions-higher-death-rates/
[30] Testimony of Bill Hammond, Senior Fellow for Health Policy, Empire Center for Public Policy, before the House Select Subcommittee on the Coronavirus Pandemic. May 17, 2023. https://docs.house.gov/meetings/VC/VC00/20230517/115959/HHRG-118-VC00-Wstate-HammondB-20230517.pdf
[31] Ibid.
[32] “Upstate” includes the 54 counties in New York other than the five boroughs of New York and Westchester, Nassau, and Suffolk.
[33] Hammond’s analysis relies on three sets of data: (i) Covid-19 deaths in New York’s long-term care facilities by date and location, released by DOH (publicly available); (ii) a database of coronavirus-positive admissions to nursing homes between March 25 and May 8 (released by DOH to the Associated Press and shared with the New York Post and the Empire Center, but which is not publicly available); and (iii) Nursing home census figures routinely posted by the Health Department on a weekly basis. Because the database of Covid-19 admissions to nursing homes between March 25 and May 8 is not public, we cannot replicate this analysis.
[34] “Why ‘Cuomo’s death order’ didn’t really cause NY’s nursing home carnage,” by Tim Knauss, March 4, 2021, by Tim Knauss, Syracuse.com https://www.syracuse.com/news/2021/03/why-cuomos-death-order-didnt-really-cause-nys-nursing-home-carnage-a-reality-check.html
[35] Information provided to the author by the Catholic Health System of Western New York.
[36] “Cuomo policy may have led to over 1,000 nursing home deaths, watchdog says.” Nolan Hicks and Bruce Golding. New York Post. February 18, 2021. https://nypost.com/2021/02/18/cuomo-policy-may-have-led-to-1k-nursing-home-deaths-watchdog/
[37] “The New York Death Toll: A new study on the impact of the Cuomo nursing-home order.” James Freeman. Wall Street Journal. February 19, 2021. https://www.wsj.com/articles/the-new-york-death-toll-11613766705
[38] “Was Cuomo’s COVID Mandate Associated with Nursing Home Deaths? A Correction.” John Bacheller. Policy by Numbers Blog. Published March 11, 2021, and updated July 22, 2022. https://policybynumbers.com/was-cuomos-covid-mandate-associated-with-nursing-home-deaths-a-correction
[39] Ibid.
[40] Ibid.
[41] “Nursing Home Response to COVID-19 Pandemic.” New York State Office of the Attorney General Letitia James. Revised January 31, 2021. https://ag.ny.gov/sites/default/files/2021-nursinghomesreport.pdf
[42] “Impeachment Investigation Report to Judiciary Committee Chair Charles Lavine and the New York State Assembly Judiciary Committee.” Davis Polk & Wardwell LLP. November 22, 2021.See p. 37. https://nyassembly.gov/write/upload/postings/2021/pdfs/20211122_99809a.pdf
[43] “Governor Cuomo Updates New Yorkers on State’s Progress During COVID-19 Pandemic: February 15, 2021.” See video at approximately 1:22:00: https://www.youtube.com/watch?app=desktop&v=mnnnvPwwDIA
[44] “Governor Cuomo admits to withholding nursing home deaths.” BBC News. February 16, 2021. https://www.bbc.co.uk/news/world-us-canada-56091682
[45] “Nursing Home Response to COVID-19 Pandemic.” New York State Office of the Attorney General Letitia James. Revised January 31, 2021. See p. 37: https://ag.ny.gov/sites/default/files/2021-nursinghomesreport.pdf
[46] “COVID-19 deaths in NY nursing homes were 50 percent higher than claimed: probe.” Nolan Hicks, Bernadette Hogan, and Carl Campanile. The New York Post. January 18, 2021. https://nypost.com/2021/01/28/ny-nursing-home-covid-deaths-50-higher-than-stated-ag-probe/
[47] “US attorney’s office in Brooklyn and FBI scrutinizing Cuomo administration’s handling of data surrounding Covid nursing home deaths.” Shimon Prokupecz and Paul LeBlanc. CNN. February 18, 2021. https://edition.cnn.com/2021/02/17/politics/us-attorneys-fbi-cuomo-covid-nursing-homes/index.html
[48] “Cuomo’s national star threatened by increased scrutiny over handling of nursing home deaths.” Gregory Kane. CNN. February 10, 2021. https://www.cnn.com/2021/02/20/politics/andrew-cuomo-nursing-home-controversy/index.html
[49] Impeachment Investigation Report, p. 5.
[50] Ibid, p. 4.
[51] Ibid, p. 40.
[52] Ibid, p. 40.
[53] “Use, Collection and Reporting of Infection Control Data.” New York State Office of the State Comptroller. March 15, 2022. https://www.osc.ny.gov/state-agencies/audits/2022/03/15/use-collection-and-reporting-infection-control-data
[54] Ibid, p. 13.
[55] Ibid, p. 44.
[56] Ibid, p. 46.
[57] Ibid, p.54.
[58] Ibid, p. 54.
[59] As noted in this Commentary, there were temporary discrepancies in the first two months of the pandemic while newly developed data collection systems stabilized. Aside from these early technical issues, no one has disputed that the Cuomo administration fully included Covid-19 deaths in its total Covid-19 death figures.
