A recently published independent review of New Jersey’s pandemic response holds lessons for New York on at least two levels.

First, it marked the only serious attempt by any state to learn from its mistakes during the Covid-19 crisis – an example that New York should follow, along with every other state and the federal government.

Second, the report gave details about New Jersey’s “must admit” order compelling nursing homes to accept Covid-infected patients being discharged from hospitals – which indirectly shed light on New York’s similar directive.

Issued on March 25, 2020 – four years ago today – New York’s version became one of Governor Cuomo’s most controversial decisions of the pandemic. The ensuing cover-up was one of the scandals that triggered an impeachment probe by the state Assembly, which in turn led to Cuomo’s resignation in August 2021.

Although all orders of this type put nursing home residents at risk, New Jersey officials mitigated that danger by emphasizing that their policy was not mandatory and providing detailed infection-control guidelines that homes had to follow if they accepted transfers. They also canceled their order after just two weeks, on April 13, while New York left its policy in place for more than six weeks.

Those differences were documented in a portion of the 910-page review of New Jersey’s overall pandemic response, which was published March 7.

The contrasts make for an illuminating case study in disaster management. They especially highlight the importance of dialogue between the officials issuing emergency orders and the people who are expected to follow those orders.

The wording of New Jersey’s order, issued March 30, 2020, borrowed heavily from New York’s decree five days earlier. Both documents cited “an urgent need to expand hospital capacity,” and both said nursing homes “must comply with the expedited receipt” of hospital patients being discharged.

Both underlined the text of the crucial paragraph, which declared that patients “shall not be denied re-admission or admission … based solely on a confirmed diagnosis of COVID-19.” 

Both added that homes could not insist on testing before accepting a patient – although New Jersey said that if a test sample had already been taken, the hospital was required to postpone the transfer until the results had come back.

As the newly published study showed, however, New Jersey’s directive came with an attached guide to the precautions that nursing homes were expected to take in handling Covid-positive admissions. Those precautions included isolating positive residents in separate rooms, wards or wings, and “cohorting” staff, with one group of employees assigned to work exclusively with infected patients, and another group to deal only with uninfected patients.

Second, New Jersey’s health commissioner, Judith Persichilli, held a conference call with nursing home administrators on the day the order was issued. During that call, the report said: 

[Persichilli] clarified that the State was not unconditionally instructing [long-term care facilities to readmit residents after hospitalization. Rather, this instruction was contingent upon facilities having adequate PPE, sufficient staffing, and the capability to isolate COVID-19 positive patients.

The Health Care Association of New Jersey repeated that point in an email to its members the following day. The email directed members’ attention to the infection control guide that accompanied the directive:

At first glance, the directive seems to mandate COVID-19 positive admissions. However, if you carefully read both documents, you will see how the following exceptions provide affirmative statements for denial of such admissions.

Despite those efforts, the report found that some nursing home officials continued to perceive the order to be mandatory. 

Yet on the same day the policy was issued, 99 facilities – or more than a quarter New Jersey’s nursing homes – notified the department that they could not accept new admissions.

It was the beginning of a burgeoning refusal rate which, in turn, prompted the New Jersey Health Department to reverse its order on April 13, almost four weeks sooner than New York.

The details of how the New York Health Department rolled out its directive are less clear, largely because the state has not yet produced a reliable account. Governor Hochul has commissioned a consultant’s report on the overall pandemic response, but it’s currently months overdue.

Based on the record so far, New York’s implementation differed in important ways.

To begin with, top nursing home officials have publicly said they received no advance warning of the March 25 directive. Nor did the document list any specific precautions nursing homes were expected to take before accepting admissions.

Cuomo and his health commissioner, Howard Zucker, later asserted that the policy had never been mandatory, and that homes always had an obligation to turn away patients they could not safely handle. But that explanation came in early May of 2020, after thousands of patients had already been transferred. It was also based on a long-standing regulation – 10 NYCRR 415.26(i)(1)) – that was not mentioned in the directive itself. It was also not in effect at the time, because Cuomo had suspended it by executive order March 18.

Although some New York nursing homes are known to have refused transfers in defiance of the order, others have said publicly that they believed they had no choice but to comply – and that their pleas for relief from the Health Department went unanswered. There has been no indication that the Health Department kept a list of facilities that were unprepared to accept admissions.

In perhaps the most salient contrast of all, New York’s order remained in force until May 10 – well after the worst of the crowding in hospitals had subsided. By that time, more than 9,000 Covid-positive patients had been discharged from hospitals to nursing homes.

Cuomo, Zucker and other officials compounded confusion about the policy by frequently saying misleading things about how it worked. As criticism grew, they also began withholding the complete count of how many nursing home residents had died – arbitrarily omitting those who contracted the disease in a nursing home, but succumbed after being taken to a hospital for treatment.

Despite repeated requests from the media and the Legislature, the Health Department failed to release an accurate nursing home death toll until early 2021 – after the attorney general issued a critical report and the Empire Center won a court order under the Freedom of Information Law.

The Empire Center’s analysis of the newly released data found a statistically significant correlation between the number of patient transfers under the policy and higher death rates in the homes that accepted them.

This tends to confirm that New York’s policy – although far from the only source of Covid in nursing homes – made a bad situation worse.

New Jersey officials issued a nearly identical policy under nearly identical circumstances. Compared to their colleagues in New York, however, New Jersey officials minimized the damage by communicating the policy more directly and openly, allowing facilities to opt out – and, most importantly of all, reversing course when they recognized their mistake.

 

About the Author

Bill Hammond

As the Empire Center’s senior fellow for health policy, Bill Hammond tracks fast-moving developments in New York’s massive health care industry, with a focus on how decisions made in Albany and Washington affect the well-being of patients, providers, taxpayers and the state’s economy.

Read more by Bill Hammond

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