New York’s nursing home policy was not fully in line with CDC

New York Gov. Andrew Cuomo, facing criticism for how the state handled COVID-19 in nursing homes, has said his administration followed guidance from the U.S. Centers for Disease Control and Prevention. 

Approximately 6,000 nursing home residents in New York have died from the virus, and Cuomo was asked on May 20 about calls for a federal probe into how the state handled nursing homes, and in particular, a March advisory that sent COVID-19 patients from hospitals to nursing homes. 

"I’m not going to get into the political back and forth, but anyone who wants to ask, why did the state do that with COVID patients in nursing homes? It’s because the state followed President Trump’s CDC guidance," Cuomo said. 

Is Cuomo correct? We looked at federal guidance at the time of the state's March 25 order, as well as other state Health Department actions at that time. 

Before the state Health Department sent its controversial March 25 advisory, which has since been withdrawn, the CDC released guidance for nursing homes.

The CDC cited two "key factors" to consider when deciding whether to discharge a patient with COVID-19 to a long-term care facility, said Kristen Nordlund, a CDC spokesperson. First, is the patient medically ready for discharge to a long-term care facility? And second, is the selected long-term care facility able to safely care for a patient recovering from the virus by implementing all recommended infection control procedures? These directives were in place on or before March 23, two days before the state issued its advisory. 

One week before the state's advisory was released, the CDC’s Morbidity and Mortality Report looked at a facility in Washington State. The report’s authors recommended that "in the context of rapidly escalating COVID-19 outbreaks in much of the United States, it is critical that long-term care facilities implement active measures to prevent introduction of COVID-19." 

The U.S. Centers for Medicare and Medicaid Services, the federal regulator of nursing homes known as CMS, also issued COVID-19 guidance. 

The top administrator at CMS, Seema Verma, pushed back on Cuomo’s claim that the state followed federal guidance. She  cited a March 13 CMS document, which says that nursing homes should only accept those patients for which they can care.  

The CMS memo also states: "Per CDC, prompt detection, triage and isolation of potentially infectious residents are essential to prevent unnecessary exposures among residents, healthcare personnel, and visitors at the facility. Therefore, facilities should continue to be vigilant in identifying any possible infected individuals." 

It was a week after the Cuomo order, on April 2, that the CMS said new long-term care patients and residents "should be screened for COVID-19 through testing, if available."  

CMS guidance also states that if possible, nursing homes should dedicate a unit or wing exclusively to residents returning from the hospital, where they can remain for 14 days without symptoms.

The state was clear about why it issued its March 25 advisory to nursing home administrators, directors of nursing and hospital discharge planners: There was an "urgent need" to free up space in hospitals for seriously ill coronavirus patients. 

The advisory said all nursing homes "must comply with the expedited receipt of residents returning from hospitals to" nursing homes, and that hospitals must declare residents medically stable before they are sent back to the nursing homes.  

The next directive, where "NH" is "nursing home" (emphasis by the Department of Health): "No resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission."

It also stated: "As always, standard precautions must be maintained, and environmental cleaning made a priority, during this public health emergency."

In other communications in March, the state told nursing homes to isolate infected residents in their rooms or to consider grouping them in a dedicated unit, as well as to stay current with CDC guidelines in preventing the spread of the disease. 

To support Cuomo’s claim, the administration pointed us to longstanding state and federal regulations that predate the pandemic, which require nursing homes to only accept patients for which they can care. 

"This is business in a nursing home: Take them if you can care for them," said state Department of Health spokesperson Gary Holmes. 

Holmes also pointed us to the March 13 CMS memo, which states that when a resident who was diagnosed with COVID-19 is coming from a hospital, nursing homes "can accept" them, as long as the facility can follow CDC infection control measures. 

The CMS memo also states: "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."

Nursing homes felt pressure to accept coronavirus patients following the March 25 order.  

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The AMDA-Society for Post-Acute and Long-Term Care Medicine issued a statement on March 26 opposing the order: "We find the New York State Advisory to be over-reaching, not consistent with science, unenforceable, and beyond all, not in the least consistent with patient safety principles." A joint statement by that organization and others in long-term care three days later reinforced their objections: "a blanket order for every nursing home in the state to accept all admissions from hospitals is not sound policy."  

On April 9, the head of a Brooklyn nursing home asked state health officials if COVID-19 patients could be transfered to the Javits Center or the Navy hospital ship, and was denied permission, the Associated Press reported.  

In late April, when reporters questioned Cuomo about the directive that nursing homes accept coronavirus patients, Cuomo repeatedly said that nursing homes should find other beds for these patients if they cannot care for them, or turn to the state to do so. He also said that the facilities "don’t have the right to object" to the state’s policy.  

On April 23, State Health Commissioner Dr. Howard Zucker said no nursing home had asked the state to take any patients it couldn’t handle.

On April 29, after the state's policy had been under intense scrutiny, Zucker wrote a letter to nursing homes, telling them to alert the state if they have patients for which they cannot care. 

In recent weeks, three facilities have asked the state for help, Holmes said. 

The March 25 advisory has been removed from the state website, and the state’s directive to nursing homes is now much different. Cuomo issued an executive order on May 10, which states that hospitals "shall not discharge a patient to a nursing home, unless the nursing home operator or administrator has first certified that it is able to properly care for such a patient." The order also requires that a patient must be tested for COVID-19, and the test must be negative. 

Though the state's actions have been criticized, it’s unclear what was the biggest source of infection in nursing homes, whether it was incoming residents, or health care workers and visitors unaware they had the virus. 

The CDC's guidance at the time of the March 25 state order was that COVID-19 patients who are medically stable can be discharged from a hospital to a nursing home, but only if the nursing home can implement all recommended infection control procedures.

CMS, a federal agency that regulates nursing homes, issued similar guidance, and also said that preferably, coronoavirus patients should be cared for in a dedicated unit. 

Like CDC and CMS, the state Health Department said only those patients who are medically stable can be discharged, and also recommended that nursing homes consider dedicated units, if possible. The Health Department prohibited nursing homes from requiring a COVID-19 test before admitting a resident, while CMS said new residents should be tested, but did not require it. 

The Cuomo administration points to state and federal regulations that predate the pandemic, which require facilities to accept only those patients they can care for. In addition, earlier state communications encouraged nursing homes to stay current with CDC guidance.

But once the state issued its March 25 advisory, nursing home operators said that they felt they had no choice but to accept residents who were either known to be infected or suspected to be. That’s because the March 25 memo did not say anything about making sure that a nursing home can care for a patient before making an admission decision, and said they "must comply with the expedited receipt of residents." In the month following the memo, nursing homes pleaded for relief from the order. 

We rate his statement Mostly False.