What Exactly Happened with Governors Cuomo, Newsom, Wolf, Murphy, Whitmer, and the Nursing Homes?
Here is a 3,500-word overview of how Governors Cuomo, Newsom, Wolf, Murphy, and Whitmer mishandled protection of the nursing homes during the COVID-19 crisis.
While 2020 saw some of the worst human rights violations imaginable—thanks mainly to international lockdowns—some instances of maleficence stand out as especially despicable. Emblematic of the worst blunders was the botched handling of nursing home safety by authorities; in the U.S., particularly amongst Governors Andrew Cuomo (NY), Gavin Newsom (CA), Tom Wolf (PA), Phil Murphy (NJ), and Gretchen Whitmer (MI). With Governor Cuomo of New York, of course, taking the brunt of the blowback.
But what seem like straightforward errors in judgement—namely, sending elderly patients positive for the virus, SARS-CoV-2, back into nursing homes—were not straightforward at all. On the contrary, it could, and should, be argued that these governors, like most, if not all, of the other governors in the U.S., were following, to some reasonable extent or another, the guidelines laid out by the Centers for Disease Control (CDC) and, more specifically, the Centers for Medicare and Medicaid Services (CMS). (CMS is a federal agency within in the Department of Health and Human Services, or HHS.)
Immediately below is the CMS guidance that was in effect across the country in March, 2020; updated as of March 13, 2020. Note that under the question “When should nursing homes consider transferring a resident with suspected or confirmed infection with COVID-19 to a hospital?” The response is: “Nursing homes with residents suspected of having COVID-19 infection should contact their local health department. Residents infected with COVID-19 may vary in severity from lack of symptoms to mild or severe symptoms or fatality. Initially, symptoms may be mild and not require transfer to a hospital as long as the facility can follow the infection prevention and control practices recommended by CDC. Facilities without an airborne infection isolation room (AIIR) are not required to transfer the resident assuming: 1) the resident does not require a higher level of care and 2) the facility can adhere to the rest of the infection prevention and control practices recommended for caring for a resident with COVID-19.”
Note the CMS guidance clearly states 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. Also, if possible, dedicate a unit/wing exclusively for any residents coming or returning from the hospital. This can serve as a step-down unit where they remain for 14 days with no symptoms (instead of integrating as usual on short-term rehab floor, or returning to longstay original room).”
The CMS guidance also clearly states that: “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 guidance for Transmission-Based Precautions.”
It should also be noted that, as any sane observer would acknowledge, COVID-19 is a seasonal, regional disease. The National Association of Nursing Home Attorneys (NANHA) chart immediately below, for example, shows a powerful correlation between where COVID-19 struck hardest in the first half of 2020 and America’s northeast region:
Note that this chart only shows data as of 7/26/2020
Despite the fact the governors were “just following” the CMS guidance (and despite the seasonality and regionality of COVID-19) they still made significant errors in judgement; if only because they were mindlessly following the poorly thought-out rules for managing the disease amongst the elderly. Below are five quick summaries outlining those failures, as well as more heinous ones, of the five governors—Cuomo, Newsom, Wolf, Murphy, and Whitmer.
NOTE: Long-term care facilities, which include nursing homes, homes for the aged, and adult foster care homes are collectively known informally as just “nursing homes.”
1. GOVERNOR ANDREW CUOMO (NEW YORK)
Governor Cuomo’s most notable crime related to nursing homes comes from his administration’s purposeful undercounting of nursing home deaths. While the way he treated nursing home residents and the elderly in general was reprehensible, it can be argued the governor was simply following the CMS guidance. However, what is in no way defensible was Cuomo’s administration’s downplaying of the nursing home death numbers. The Wall Street Journal puts it succinctly when it says that:
“[The report from the New York State Office], which examined the factors that led to the spread of the virus in nursing homes, focused only on residents who died inside long-term-care facilities, leaving out those who had died in hospitals after becoming sick in nursing homes. As a result, the report said 6,432 nursing-home residents had died—a significant undercount of the death toll attributed to the state’s most vulnerable population, the people said. The initial version of the report said nearly 10,000 nursing-home residents had died in New York by July last year, one of the people said.”-The Wall Street Journal
The Wall Street Journal adds that “The changes Mr. Cuomo’s aides and health officials made to the nursing-home report, which haven’t been previously disclosed, reveal that the state possessed a fuller accounting of out-of-facility nursing-home deaths as early as the summer.”
In the report from the New York State Office of the Attorney General NYS Attorney General Letitia James outlined the way Cuomo’s administration had undercounted the deaths. The report notes that, in at least one instance, Cuomo’s administration undercounted nursing home deaths by nearly 56%.
2. GOVENROR GRETCHEN WHITMER (MICHIGAN)
Like Governor Cuomo, Governor Whitmer—who issued an initial executive order on COVID-19 in long-term care facilities on April 15, 36 days after the state confirmed its first cases of the virus—seems to have, in general, followed the CMS guidance. However, Michigan’s nursing home association leader did recommend in a letter to Governor Whitmer’s administration that empty facilities should be used as quarantine centers to “avoid widespread infection.”
“But state officials declined the suggestion of Melissa Samuel, president and CEO of the Health Care Association of Michigan,” The Detroit News reported, “and instead set up a system in which infected residents are cared for in isolated areas of nursing homes, separate from residents without the virus.” (Again, as is clear, this is in line with the CMS’ guidance. Although it could be argued that this policy of putting COVID-positive patients in the general population is moronic on its face.)
As for undercounting of nursing home deaths, that’s still unclear as of July 2021, and will quite possibly remain unclear indefinitely. This is because the Michigan Department of Health and Human Services Director, Elizabeth Hertel, admitted in a House Oversight Committee hearing that the State’s nursing home death count “could be low,” noting “we do not know because we don’t know what’s occurring in those facilities”.
Deadline Detroit, however, reported in May 2021 that “It appears that Michigan wildly under-counts Covid deaths in its long term care facilities.” The report went on to note that a joint investigation by the “No BS News Hour” and the Mackinac Center for Public Policy found that the Department of Health and Human Services (DHHS) “does not do a thorough job of scrubbing vital records” to determine if somebody who died of/with COVID-19 was a nursing home resident. Deadline Detroit reported that “The true number of pandemic deaths inside Michigan’s elder care centers may never be known. But our analysis shows that the Covid death toll may be 100 percent higher than the state reports.”
In late July of 2021 The Department of Justice said that it would not investigate the Whitmer administration’s handling of COVID-19 in the state’s nursing homes. Which tracks considering the fact Whitmer’s administration was, apparently, following the CMS guidance. Even two-and-a-half months into COVID-19’s appearance in Michigan, however, Whitmer doubled down on the CMS guidance.
“We, I think, learned a great deal in the last 10 weeks,” Whitmer said. “I think if we could go back in a time machine and do some things differently, sure, there are things we would improve upon, but every action we took was based on the best science and the best information available to protect people and save lives.” Click on Detroit, which reported Whitmer’s statement, added in its article that “[Whitmer’s CMS-based] plan is still in action, though, putting people vulnerable to infection at risk.”
Also note that the Michigan’s DHHS designated “regional hubs”; that is, existing nursing home facilities that had the ability to care for individuals with COVID-19 in isolated areas within their buildings. Nursing homes received $5,000 per approved bed during “the first month” of the pandemic to establish a hub. In support of ongoing operations, facilities also received a $200-per-day payment “per beneficiary” for any occupied hub beds. The early order also said a nursing home with a census below 80% had to create a unit dedicated to the care of COVID-19-affected residents. Nursing homes “must accept the return” of somebody who’d been hospitalized if it can meet the person’s needs, the order said.
3. GOVERNOR GAVIN NEWSOM (CALIFORNIA)
Unlike Governor Cuomo, Governor Newsom’s administration did not outright undercount nursing home deaths. The administration did, however, hide them for some time.
“It’s stunning that five weeks after Newsom’s statewide shelter order we still don’t have a solid sense of the magnitude of the devastation in nursing homes across California,” The Mercury News and East Bay Times Editorial Boards wrote in an op-ed in The Mercury News. “We should not have to be guessing at these numbers, nor where the cases and deaths have been,” the op-ed added.
Newsom’s administration also frequently acted in defiance of warnings from medical professionals. An article from The Mercury News posted in May of 2020 pointed out that the state Department of Social Services urged licensees of senior and adult care residential facilities to take patients who’d tested positive. The department offered the facilities $1,000 a day to take patients; specifically those “who become critically ill and require acute care.” (The state department did not require mandatory testing at long-term care facilities at this point.)
The Mercury News reported in its article that Mike Dark, a staff attorney for watchdog group California Advocates for Nursing Home Reform, referred to the idea of putting positive patients into senior care facilities as “awful and stupid.” The Mercury News also reported that “medical experts and advocates have sharply criticized the move, saying the contracts could potentially introduce the virus into facilities that have been spared or that are already dealing with their own outbreaks.”
NPR also reported that the California state directives were strongly condemned by the Society for Post-Acute and Long-Term Care Medicine. The president of the society’s Washington state chapter, and chief medical officer for Avalon Health Care Group, said that “The question is, should we be forced to introduce a disease with such deadly potential into a population that has been sheltered? And my experience tells me that would be ill-advised.”
(Note: In the same article one spokesperson for the California Hospital Association said that “Hospitals would never transfer a patient who needs to be hospitalized.” And that “Most people who have coronavirus don’t need to be hospitalized. They’re not showing acute symptoms.”)
4. GOVERNOR TOM WOLF (PENNSYLVANIA)
Governor Wolf had perhaps the least ineffective response out of the five governors included on this list. The governor still faced harsh criticisms, however, mostly related to his administration’s execution of policies derived from CMS guidance.
“His breathtaking failure to protect the most vulnerable population in Pennsylvania warrants an independent investigation,” U.S. Rep. Scott Perry wrote in a letter calling for a federal investigation into Gov. Tom Wolf’s administration’s handling of the nursing homes. York Dispatch reported at the time that Perry alleged Wolf’s administration “failed to adequately protect nursing home residents during the coronavirus pandemic.”
York Dispatch noted in the same article that “frustration [with Wolf’s administration] has also boiled over because the state permits nursing homes to accept COVID-19 patients and has only recently agreed to name facilities that have had outbreaks.” At the time of the article’s publication (May 18, 2020) approximately 69% of the state’s 4,505 COVID-19 deaths had occurred in nursing homes and other elder care facilities.
York Dispatch also reported that Attorney General Josh Shapiro launched a criminal probe into nursing homes that may have failed to implement adequate safety measures. Although on February 18, 2021, Shapiro’s office said that it was not looking at state officials or their policies in the probe.
5. GOVENROR PHIL MURPHY (NEW JERSEY)
Governor Murphy’s administration faltered in the two essential ways the other four governors’ administrations on the list did: by sending patients positive for COVID-19 into nursing homes and creating a system of reporting cases in the homes that was ineffective.
Like the other governors on the list Murphy’s administration sent elderly who tested positive for COVID-19 into nursing homes against the protestation of health officials. Fox News reported in March of 2020 that one health administrator told New Jersey Health Commissioner Judith Persichilli that “Patients will die” should the administration send COVID-positive patients into nursing homes. “You understand that by asking us to take COVID patients, by demanding we take COVID patients, that patients will die in nursing homes that wouldn’t have otherwise died had we screened them out,” the administrator added.
Fox News reported another administrator went on to tell Persichilli that “You have asked us to separate safely and create our own wing and take in COVID-19′s from the hospital.” The administrator went on to say that “The problem, of course, is there is no separating safely. It’s almost certain that even though you have staff only on that unit, something will migrate.”
“Within a week, 200 facilities notified us that they could not accept new admissions,” said New Jersey Department of Health spokeswoman Donna Leusner.
In June 2020 a group of anonymous employees from the New Jersey Health Department referring to itself as the NJ Pandemic Response Team wrote a letter to lawmakers saying that Persichilli’s handling of COVID in the nursing homes was “an unmitigated failure” that led to “preventable deaths.” NJ Advance Media reported that the letter also called “for the resignation of state Health Commissioner Judith Persichilli and an investigation into other top administration officials who they said have mishandled the state’s response.”
In October of 2020 The Philadelphia Inquirer reported that “New Jersey’s 400 nursing homes and long-term care facilities account for nearly 7,000 of the state’s 16,200 COVID-19 deaths, and the Murphy administration has a poor track record on transparency and other issues.” The Inquirer also reported that the state’s health department reporting dashboard for elderly care facilities omitted “information about earlier outbreaks by facility, instead offering a combined cumulative number for them all” and that “It took a horrifying revelation [in April 2020] that the bodies of 17 deceased coronavirus patients were overwhelming a Sussex County nursing home’s morgue to force New Jersey to make the essential information available to the public.”
THE ISOLATION OF THE ELDERY: A CRIME AGAINST HUMANITY
Just as egregious as the errors these governors made regarding sending positive patients into nursing homes and/or downplaying the amount of COVID-19 spread/deaths in those nursing homes was their “just following orders” attitude toward isolation of the elderly. In all five of these states—indeed, in the vast majority of the states in the U.S.—governors cut off nursing home residents from the outside world. More specifically, from their loved ones.
None of these governors would ever apologize for this cruelty as they could claim they were doing what they were told to do. But it should be noted anyway. It’s obvious isolation has enormous negative effects on a person’s psyche and physiology. The evidence showing this is commonplace. And well documented in the context of COVID-19 lockdowns.
Below is a reminder that all five of the governors discussed here isolated the elderly in their respective state’s nursing homes; unnecessarily causing untold psychological damage to those most at risk of being affected by COVID-19.
In March of 2020 the Sacramento Bee reported that “Gavin Newsom’s recommendation that hospitals and nursing homes severely restrict visitors threw hundreds of thousands of California families into disarray and heartache….” The Bee reported at that time that Betsy Donovan, chief operating officer at Eskaton, a major chain of skilled nursing and assisted living centers in Sacramento, said “Isolation is very, very difficult for older adults. Many believe it can be more detrimental than some physical ailments.”
It was more than clear by late 2020 that California’s nursing home residents were suffering from isolation due to COVID-19 restrictions.
“The older population already runs the risk of being very lonely in our society, whether they live in a facility such as ours or they live at home,” Katy Tenner, a dietitian at a nursing home in Sacramento, California told ABC News on November 19, 2020. “So that was something we saw right away among the dementia patients — the ones who really require a lot of routine and normalcy.”
Nursing home staff had to step into the “social services” role whether they were “qualified or not” to, Tenner added. “We are now some of the only people that our residents see on a daily basis — the only familiar faces.”
In March of 2021 U.S. News reported that California finally lifted most COVID-19 restrictions on nursing homes. “Nursing home residents and staff in California sang ‘Over the Rainbow’ as they resumed group activities and allowed visitors back in,” U.S. News reported. The outlet noted that “Nursing homes, assisted living facilities and other kinds of elderly residences battered by COVID-19 are easing restrictions and opening their doors for the first time since the start of the pandemic,” consequently leading to “joyous reunions around the country after a painful year of isolation, Zoom calls and greetings through windows.”
On March 2, 2021 the Detroit Free Press reported that “For the first time in nearly a year, visitor restrictions on nursing homes in Michigan are easing up, allowing families to see their loved ones in person again — regardless of how much COVID-19 is spreading in the community” thanks to an announcement by Governor Whitmer.
“We know that this virus has taken a disproportionate toll on our seniors and the isolation and the time apart has been taxing on everyone with loved ones in long-term care facilities,” Whitmer said in a press conference on March 2, 2021. “Under the new guidelines, family members … will be able to go and visit their relatives in nursing homes after receiving a COVID-19 test.”
“Governor Andrew M. Cuomo today announced that the New York State Department of Health will allow visitation of residents in nursing home facilities in accordance with CMS and CDC guidelines,” the NYS governor’s office said in a release published on February 19, 2021. “One of the most devastating aspects of this virus has been how it separated families from their loved ones, making an already difficult situation even harder to bear,” Governor Cuomo said in the announcement. “We understand the emotional toll that this community has experienced by being separated from their loved ones during a particularly challenging year,” New York State Department of Health Commissioner Dr. Howard Zucker added in the release.
On March 12, 2021, CBSN Pittsburgh reported that “The federal government said…that nursing home residents vaccinated against COVID-19 can get hugs again from their loved ones, and all residents may enjoy more indoor visits in a step toward pre-pandemic normalcy.”
“We understand how difficult this past year has been on families and nursing home residents,” Acting Health Secretary Alison Beam said in a press release. Beam added that “the guidance acknowledges that there is no substitute for physical contact, such as the warm embrace between a resident and their loved one.” Consequently, Beam and her team allowed—fully vaccinated—residents to “choose” to have close contact with somebody “wearing a well-fitting mask.”
On February 24, 2021, northjersey.com reported that “Family and friends of many nursing home residents will be able to visit their loved ones indoors – some for the first time in nearly a year, state officials announced Wednesday.” The outlet reported, however, that visits at that point were limited “to nursing homes in seven counties that have seen COVID-19 activity drop significantly in the past two weeks to ‘moderate’ status based on a Health Department’s risk assessment.”
Immediately below is a video from WNYT NewsChannel 13 in New York that captures the essence of the heartbreak derived from isolating the elderly. “The COVID pandemic [that is, the RESPONSE to the COVID pandemic] in many ways was cruel to seniors; in-person visitation was prohibited [and] much of their time was spent alone in their rooms,” the WNYT reporter notes in the video. “For the longest period during COVID we were completely restrictive with having visitors come in, which was incredibly unfair to the residents, to their families, residents need comfort, they need interaction with their families, they need to see them,” Mark Koblenz, the CEO of Daughters of Sarah nursing home, adds in the video.
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