NY Agency Says Nursing Homes Not At Fault For Virus Deaths

By Kevin Stawicki
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Law360 (July 7, 2020, 10:56 PM EDT) -- New York nursing home workers infected with COVID-19 were the primary link to patient fatalities caused by the novel coronavirus, not the facilities' admission policies or quality of care, according to a report released Monday by the New York State Department of Health.

The 6,432 deaths of patients at New York nursing home facilities as of late June were a result of transmission by employees who unknowingly had the virus and came to work based on the now-debunked consensus among public health officials that asymptomatic people can't transmit the disease, the agency said in the report.

Considering the average length of 18-25 days between infection and death, the report said asymptomatic employees going to work in mid-March were correlated with the peak of patient deaths in early April, as opposed to the state's March 25 policy that allowed nursing homes to admit patients with COVID-19.

"A causal link between the admission policy and infections/fatalities would be supported through a direct link in timing between the two, meaning that if admission of patients into nursing homes caused infection — and by extension mortality — the time interval between the admission and mortality curves would be consistent with the expected interval between infection and death," the agency wrote in the report.

But the peak in admissions of residents with the virus happened a week after the peak in deaths at nursing homes, the state agency said, noting that "if admissions were driving fatalities, the order of the peak fatalities and peak admissions would have been reversed."

The report comes as nursing homes and the state have come under fire for their staggering virus death tolls among patients. In a March executive order, New York granted a robust immunity shield to protect nursing homes and their staff from liability in most cases, a measure that has since been challenged by advocates who fear it will hide deadly neglect.

With or without an immunity shield, Tuesday's report suggested there's little for New York nursing homes to worry about when it comes to liability, citing news organizations' findings on how fatalities in them were similar to fatalities in other states with smaller populations.

Further, New York simply followed guidance by the Centers for Medicare & Medicaid Services in issuing its policy that nursing homes could admit COVID patients if they could provide adequate care, the report said, adding that "neither CMS guidance nor the state ever directed that a nursing home must accept a COVID-positive person. In fact, the opposite is true."

Patients infected with the virus were also sent to nursing homes after an average of nine days following admission to hospitals, the report said. The finding shows how patients weren't contagious upon admission to the nursing home, given public health experts' belief that infected people aren't infectious after nine days, the report said.

David Reich, president of Mount Sinai Hospital, whose researchers worked on the report, said that nursing home workers were found to have had antibodies to SARS-CoV-2, the virus that causes COVID-19, in blood samples by late February.

"This means that the virus was spreading in the NYC metropolitan region approximately three weeks earlier," he said in a statement.

Michael Dowling, CEO of Northwell Health, the state's largest health care provider, said the study underscores how nursing homes were among a large number of congregate settings severely affected by the virus, but that their admissions policy wasn't the root of the problem.

"The overwhelming majority of hospital patients sent back into nursing homes were not only medically stable, they were no longer contagious," Dowling said in a statement.

"We all hope to learn from these data and work with NYSDOH and nursing home partners to maximize safety for our most vulnerable citizens as this pandemic continues to evolve," he continued.

--Additional reporting by Frank G. Runyeon. Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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