19 June 2021: Deeper Inside the NYS Bar Association Task Force's Report

Cuomo administration directive led to nursing home deaths, report argues

This article provides additional bits of information that have not been widely reported on the findings of the New York State Bar Association's task force's recent findings. The following excerpt picks up on things that will not be surprising to our readers, but are nice to have laid out and summarized in a more succinct form than we've provided.

The New York Post, which first reported the findings of the Bar Association's 16-member task force, also reported that last Saturday, the report was adopted by 93 percent the NYSBA’s House of Delegates in a vote consisting of about 200 members.

The Department of Health directive, issued March 25, 2020, stated that nursing homes, as long as they could properly care for a person, could not deny re-admission or admission solely on the basis of a confirmed or suspected diagnosis of COVID-19.

Many nursing homes took the directive to mean that they were required to accept COVID-positive patients coming from a strained hospital system. And critics would soon contend the policy led to rampant infection within highly vulnerable populations.

The directive also barred nursing homes from requiring a previously hospitalized person who was determined to be medically stable from being tested prior to admission. The Bar Association report found that although a “determination of the number of additional nursing home deaths is beyond the capacity of the Task Force, there are credible reviews that suggest that the directive, for the approximately six weeks that it was in effect, did lead to some number of additional deaths.”

Specifically, the Bar Association pointed to the February findings of the Empire Center for Public Policy, a fiscally conservative Albany think tank, that found that COVID-positive admissions were responsible for nursing home deaths, ranging from “several hundred" to "possibly more than 1,000.”

“The Department of Health issued a report in 2020 in which it argued unconvincingly that the admission of 6,326 COVID-positive residents during the period the Health directive was in effect had no impact,” wrote the Bar Association task force. “That cannot be the case, and has now been shown not to be the case.”

The article also picks up on things we haven't covered in the timeline:

But the Bar Association added that the directive was not necessarily issued in error: In March 2020, the state believed that it was in need of thousands of additional hospital beds, with intensive care units filling up, as the virus hit New York first and hardest in the United States. The hospital system appeared overwhelmed and in danger of collapse, so “difficult decisions were being made.”

There were other factors cited in the report for nursing home deaths: an insufficient federal response to the pandemic, including its failure to marshal enough personal protective equipment, to gain information from China about the virus, or to make testing available.

“At the time, seeing nursing home beds as a hospital extender when hospital beds were not expected to be available was not an unreasonable decision,” the report found.

We think that particular view is subject to debate, because the Cuomo administration had viable options it could have pursued before implementing its deadly 25 March 2020 directive. Regardless, the task force's findings make very clear what it regards as unreasonable in the policy and its implementation:

Yet what was unreasonable, the report found, was the Cuomo administration’s failure to recognize that nursing homes needed just as much help as general hospitals. Nursing homes were given little assistance securing personal protective equipment, and the report noted that during an April 2020 press conference, Cuomo “roundly criticized” suggestions that nursing homes should have been aided further.

The Bar Association also found the “absoluteness” of the directive unreasonable, noting that the language disallowing the denial of medically stable patients. The directive was “commonly read” by nursing homes to mean they had to accept COVID-positive patients, regardless of another regulation stating homes should only accept patients they could properly care for. ,/p>

“The directive came at a time when regulations were routinely being overridden,” the report noted.

The report stated that it was unreasonable for the Cuomo administration to leave the directive in place for weeks after it was necessary. Emergency hospital beds set up at the Javits Center in New York City were barely used, the report noted, and the USNS Comfort, which was to be used for similar purposes, set sail for New York on April 23, 2020. The Navy hospital ship's beds also sat empty, the report noted.

Yet the Cuomo administration directive, meant to alleviate stained hospital capacity, remained in effect until May 10, 2020.

“The March 25th directive could have been rescinded on or about the date the Comfort set sail, if not sooner,” the report noted.

In this section, the article errs in identifying the timing of the USNS Comfort's arrival in New York City. The hospital ship arrived on 30 March 2020 and began accepting patients on 6 April 2020. The ship departed from New York on 30 April 2020, having only accommodated 182 patients during the two weeks patients were admitted on board. The ship has a regular 500 bed capacity and the ability to rapidly expand to 1,000 beds, most of which went unused.

We would suggest the 25 March 2020 directive could have been rescinded before 21 April 2020, which is the date the last patient was admitted onto the USNS Comfort. We say it could have been rescinded even earlier than that because the temporary New York City's Javits Center hospital facility was similarly underutilized and could easily have taken in all of the patients the USNS Comfort took on board during the period from 6 April 2020 through 21 April 2020.

Under the circumstances that existed and were known to the Cuomo administration and the New York Department of Health, we think it is unreasonable for the 25 March 2020 directive to have been sustained for any period of time after 6 April 2020 under the NYS Bar Association's task force's logic. Given their available options, they could have chosen to avoid implementing it for longer as well, which we think fails the test of reasonableness for it to have been implemented at all.

If it had never been implemented, Governor Andrew Cuomo would have become an undisputed hero in the coronavirus pandemic. But he did and he tried to cover up the deadly impact of his administration's deadly directive, which exposed he is anything but heroic.