Hochul Signs Legislation To Protect Nursing Homes From Infection

LONG ISLAND, NY — Gov. Kathy Hochul signed legislation Wednesday that will require residential health care facilities to quickly update residents, their families and guardians when an infection is detected within the facility.

The legislation also requires nursing homes to have a plan in place to accommodate exposed or infected residents to stop the spread of the infection.

"New Yorkers living in nursing homes deserve the highest quality of care, and their families deserve to know that their loved ones are safe," Hochul said.

The legislation will expand the existing pandemic emergency plan to improve communication by requiring nursing homes to inform residents and their loved ones of an infection. It will also require facilities to prepare a plan or procedure for accommodations for residents during an infectious disease outbreak, which will help ensure every nursing home is ready and able to effectively place residents in the event of an infection for their safety and the safety of others.

A year ago, the governor signed a package of four pieces of legislation to support long-term care facilities and provide assistance to the system. The legislation directed the health commissioner to implement an infection inspection audit and checklist on nursing homes; enacted a series of reforms to the state's long-term care ombudsman program and related programs to increase accessibility for residents of nursing homes and residential care facilities.

In addition, the measure established the "reimagining long-term care task force" to study the state of long-term care services in the state, and directed officials to study, develop, and implement a long-term strategy to support the growth of the caregiving industry in New York.

Hochul has also supported investments in the long-term care ombudsman program, reimbursement for nursing homes, additional funding for staffing as well as capital funding for nursing home transformation, including the promotion of the nursing home green house model, to promote high-quality long-term care for all, she said.

State Senator James Skoufis noted: "The COVID-19 pandemic taught us many necessary, but deeply painful, lessons. A direct result of our 2020 hearings surrounding nursing home safety, this legislation will ensure these facilities are prepared when future infection threats arise, and will empower families of our ill and elderly to make informed decisions about their care. We must never allow our residential care facilities to be so blindsided again."

Assemblymember Jennifer Lunsford added: "When COVID hit, residents of nursing homes and their loved ones were left flat-footed. Nursing homes found themselves unprepared for the public health emergency, and residents and loved ones were left in the dark. . . We can never let this happen to our most vulnerable New Yorkers ever again."

A directive by Gov. Andrew Cuomo to admit COVID-19 patients to nursing homes led to additional deaths and should have been rescinded sooner, an explosive report by the New York State Bar Association stated in June 2021.

However, the report reminded that the state at the time faced an emergency situation and needed hospital beds.

As the New York Post reported, the 242-page document released by the association's Task Force on Nursing Homes and Long-Term Care said the mandate was “unreasonable” and was in effect weeks "longer than necessary."

Nearly 40-percent of COVID-19 related deaths in the nation took place in nursing homes, the report said. As of March 3, 2020, a total of 13,625 New York residents of nursing homes died due to the coronavirus.

"Things went strikingly wrong," the report said.

A March 25, 2020, directive to New York’s nursing homes "regarding the admission of COVID-19-positive residents has become so central to the public narrative of New York’s first surge experience that it must be discussed separately," the report said.

The directive said that no resident would be denied re-admission or admission to a nursing home solely based on a confirmed or suspected diagnosis of COVID-19. In addition, nursing homes were prohibited from requiring a hospitalized resident who was determined medically stable to be tested for COVID-19 prior to admission or readmission.

The directive sparked an immediate backlash, and caused Cuomo "to lash out at nursing homes, spurred a congressional inquiry, and, ultimately, an investigation of the governor himself," the report said.

However, the report added, the directive did not, as often claimed, cause 15,000 deaths. "The 15,000 number that has been bandied about is the approximate total number of New York long-term care facility residents who have succumbed to the virus. This figure includes nursing home residents who passed away long after the directive had been rescinded. It includes residents who were unaffected by the order."

The report added: "This is not to say that the directive did not result in any additional deaths. 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."

The state Department of Health issued a report in 2020 which said the directive did not impact nursing home deaths.

Cuomo, in early 2021, discussed what he called "much distortion" around the March 25 memo. Cuomo said on March 13, the Centers for Medicare and Medicaid Services and on March 23, the Centers for Disease Control and Prevention, put out guidance regarding sending people with COVID back into nursing homes. New York State, along with 12 other states, followed that guidance, which was based on reasoning including that those residents were not contagious; seniors should not remain in hospitals longer than necessary; and patients were sent back to nursing homes only if those nursing homes could provide proper care, by law, Cuomo said.

At the time, hospital capacity was a chief concern, he added.

All deaths in nursing homes were fully, publicly, and accurately reported, Cuomo said.

He said he took responsibility for a delay in providing the press and the public additional information, which he said created a "void" that led to "skepticism, cynicism and conspiracy theories."

More important, he said, it led to "disinformation and anxiety" for families that had lost loved ones.

"The truth is everyone did everything they could," he said, adding, "Covid attacks seniors. People still die in nursing homes today."

The press briefing was followed by a report by Attorney General Letitia James who said nursing home deaths from COVID-19 were undercounted by more than 50 percent.

The NYSBA report said that the governor's directive was not necessarily issued in error.

"The Department of Health’s report, however, does correctly state that on March 25 the virus was already in many of metropolitan New York’s nursing homes, and that the COVID-19 fuse had been lit," the NYSBA report said. "That there were additional deaths does not mean the Department of Health directive was issued in error. The emergency circumstances of March 25 must be remembered. On March 25, the state believed that it was in need of thousands more hospital beds. ICUs were filling up. The hospital system appeared to be fully overwhelmed and in danger of collapse. Difficult decisions were being made."

However, the report said, it was unreasonable to leave the directive in place for so long after it was necessary.

The state, the NYSBA report said, was also "burdened with the insufficiencies of the federal response."

The pandemic faced a number of challenges the report said, including suppression of information, failed testing, and weakened public health structure, that caused things to go wrong.

"They went wrong because warning signs, big, flashing warning signs, were missed. They went wrong because the virus was not understood – especially that asymptomatic spread was a feature of this virus, unlike other recent viruses. They went wrong because there was not enough PPE. And, they went wrong because the virus arrived so quickly in New York and with so much virulence that adjustments could not be made in time to avoid catastrophic consequences," the report said.

The performance of nursing homes was also a factor, the report said; nursing homes were "poorly prepared for the onslaught," with inadequate personal protective equipment. "Already thin staffing became worse for nursing homes during the coronavirus pandemic," the report said.

Also, the report said: "There was the mistaken belief, or at least mistaken public statements, that New York was ready to control the virus. There were the political tensions between Governor Cuomo and Mayor DeBlasio, which interfered with communication between the State and City Departments of Health. And finally, there was the delay in shutting down New York’s economy."

Also, nursing homes in areas with high numbers of COVID-19 cases were more likely to have an outbreak, with the largest proportion of a nursing home’s staff low-paid direct care aides, food service workers, and custodian staff, workers who are typically drawn from areas in close proximity to the nursing home, the report said.

"Thus, especially in the early days of the epidemic in New York, when asymptomatic spread was not yet recognized, there was a close correlation between nursing home location and COVID-19 cases. Nursing home residents were in harm’s way."

The virus was also most dangerous for older adults, the report said, as well as to those with comorbidities.

Nursing homes were not prepared for the "onslaught of the virus," the report said. "It is also not clear to the task force that the state’s nursing homes took sufficient meaningful steps to prepare for the arrival of the virus."

After the virus arrived, there were nursing homes that created COVID-19-only floors or wings; there was also hazard pay, the report added.

The report also mentioned Cuomo's executive order to grant immunity "against ordinary negligence to health care professionals, and certain health care entities, including nursing homes.That immunity was codified a short time later. The grant of immunity was controversial from the start."

The immunity grant was partially repealed in August, 2020, the report added.