NY State Bar Association: Gov. Cuomo’s nursing home order resulted in ‘some number of additional deaths’

A New York State Bar Association Task Force has just published its 240-page report on nursing homes during the pandemic. The report concludes that Cuomo’s infamous nursing home order did contribute to additional deaths. However, the report also makes clear that there were many problems with the US and worldwide response which all contributed to the ultimate outcome.

Things went strikingly wrong. They went wrong for a variety of reasons. They went wrong due to a failure to recognize the depth and scope of the problem early. They went wrong because information was suppressed, in China and at the hands of the President. They went wrong because too much faith was placed in the ability of the health care system to check the epidemic. They went wrong because elements of the public health structure had been weakened. They went wrong because early efforts to check the virus’ spread were ineffectual. They went wrong because testing failed. 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.

And in the midst of all of these things going wrong were nursing homes where the most vulnerable populations were living. As the report notes, 70% of COVID deaths were from people 70 years old and older. That meant the introduction of the virus, usually via nursing home staff, was a disaster waiting to happen:

The virus had an immediate impact on nursing home staffing. Nursing homes, which were already leanly staffed, found themselves with missing staff. Staff became ill. Staff stayed away from work to care for their own families. And some staff simply became afraid. This is not a criticism. Health care workers, including nursing home staff, have performed heroically through the epidemic. Nevertheless, there were staffing shortages. Operators reacted with forced overtime, hazard pay and bonuses.

Into this toxic mix came the March 25th Department of Health directive that required nursing homes to accept COVID-19-positive returning and prospective residents, and specifically barred testing of those individuals. As will be discussed further in this report, how many individuals were admitted into nursing homes as a result of this directive is not yet clear.

How many additional deaths did the directive cause? The report doesn’t offer a number, except to say that obviously it wasn’t responsible for all nursing home deaths:

What the directive did not do, as is often claimed, is 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.

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.

As for that New York Department of Health report denying the directive caused any deaths, the report says that’s obviously not true:

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. That cannot be the case, and has now been shown not to be the case.

However, just after saying this, the report seems to offer Gov. Cuomo an out:

That there were additional deaths does not mean the Department of Health directive was issued in error. The emergency circumstances of March 25th must be remembered. On March 25th, 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.

The State was also burdened with the insufficiencies of the federal response. The federal response was hopelessly politicized. What can kindly be called mixed messages and stops and starts were coming from the federal government. Then President Donald Trump repeatedly down-played the scope of the problem.

Trump was obviously wrong about the virus disappearing anytime soon but what does that have to do with Cuomo’s decision to send COVID patients to nursing homes? Was Cuomo relying on Trump for guidance? That’s not how I remember it. Cuomo was set up by the media as the progressive alternative to Trump, i.e. the hero of the pandemic. He got so much praise for his daily briefings that he wrote a book about his own outstanding leadership. So it’s a cop out on the part of the State Bar Task Force to suggest Cuomo’s bad decision was somehow the result of Trump’s statements about the virus. The whole point of the Cuomo show was that he was making his decisions apart from Trump.

The NY Post reports that NY Department of Health has already put out a statement denouncing the report:

A DOH spokesperson said of the report: “Sadly, this is yet another example of some politicians pushing their political agendas and personal vendettas.”

“This latest report, like others before it, supports what we’ve said all along, that New York was blind-sided and got hit the hardest, that when COVID got into communities it quickly and quietly spread from asymptomatic staff into nursing homes, and that New York’s nursing home experience was not unlike that of other states,” the spokesperson said.

There doesn’t seem to be a statement from Cuomo yet. I’ll add it below if I see one.

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