The Empire Center, which went to court to get data from the state on nursing-home deaths in New York, released an analysis on Thursday evening that shows higher death rates in homes that admitted COVID-positive patients.

On March 25, 2020, the state’s Department of Health issued guidance that “[n]o resident shall be denied re-admission or admission to the nursing home solely based on a confirmed or suspected diagnosis of COVID-19. Nursing homes are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or re-admission.”

The guidance, which was rescinded with a May 10 executive order, was associated with “a statistically significant increase in resident deaths,” says the Empire Center analysis; based in Albany, the center is a nonpartisan, not-for-profit think tank.

The state’s policy was adopted because of concern about hospitals reaching capacity in the midst of the pandemic’s spring surge in New York.

“Statewide, the findings imply that COVID-positive new admissions between late March and early May, which numbered 6,327, were associated with several hundred and possibly more than 1,000 additional resident deaths,” the Empire Center analysis says.

On Friday, during the governor’s press briefing, Health Commissioner Howard Zucker gave a lengthy explanation of the decision-making process that led to the March 25 memo, setting it in the context of the surging pandemic.

“March 25th was not the driver of COVID infections. It was not the driver of COVID fatalities,” said Zucker. “The facts are the facts.”

“The salient policy question isn’t whether the March 25th memo introduced COVID into nursing homes, but whether it contributed to higher infection and mortality rates,” responded Bill Hammond, senior fellow at the Empire Center, in a statement on Friday.

Hammond went on, “In its own report from July, the DOH specifically posed the question: ‘Did admissions increase mortality?’ and then exonerated itself based on cherry-picked data. The newly released numbers suggest otherwise — that admissions were indeed associated with higher mortality.”

Zucker began his narrative on Friday by saying doctors — he is both a lawyer and a doctor — constantly replay and review their decisions.

“But you can only review the decision with the facts that you have at the time and with the facts that we had at that moment in time, it was the correct decision from a public health point of view,” he said.

Zucker noted that modeling at the time said New York would have 140,000 hospitalized COVID patients, including 37,000 in intensive-care units. “The COVID hospital rates were growing at a staggering pace, doubling every three days,” he said.

New York has just 50,000 hospital beds with just 30,000 downstate where the problem was concentrated, Zucker said. “Balancing the patient load” became imperative, he said.

“People die if you cannot get them into the hospital or staff are overstretched as a result of those numbers,” he said. Once people no longer need to be in a hospital, Zucker said, you send them home.

“You don’t want to risk a hospital infection,” he said. “You don't want to risk all the mental health effects of having someone particularly those who are elderly stay in the hospital.”

Zucker then quoted the guidance at the time from the federal government.

A March 13 directive from the Centers for Medicare and Medicaid Services said, “Nursing homes should admit any individuals that they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 is present. A nursing home can accept a resident diagnosed with COVID from a hospital.”

The March 23 guidance from the Centers for Disease Control and Prevention said, “The COVID-19 patients from hospitals should go to the facility with the ability to adhere to infection prevention and control recommendations for the care of COVID-19 patients. Preferably, patients would be placed at a facility that has already cared for COVID-19 patients.”

Zucker said that it is against the law for a nursing home to take someone that they cannot care for.

He also asserted that the infection in nursing homes “came through the staff.”

“We found 37,000 staff that have been infected,” he said. “It came in asymptomatically, it came in inadvertently by dedicated staff. No one is criticizing the staff for this. We were back at a time when we didn’t even know about asymptomatic spread. We didn’t even know that you must wear a mask.”

Zucker also said, “Ninety-eight percent of the nursing homes that accepted a hospital admission already had COVID in that facility. It is unfortunate, it’s tragic, but it’s true, it’s the facts. One-hundred-and-thirty-two facilities that never took a COVID admission from the hospital still had COVID fatalities.”

Since May, Zucker said, no resident has been admitted to a nursing home without a negative test for COVID-19 and visits are restricted. 

“The staff are the only ones coming in and they’re tested twice a week,” he said. “And yet, we are still seeing nursing home outbreaks and fatalities. The same rate of nursing home fatalities as we saw before March 25th, after March 25th, and in the fall and winter ….

“The fatality rate then and now is consistent with community spread. We have said this all along. What happens in the community happens in the nursing homes.”

Finally, Zucker asked what would have happened if the March 25 memo hadn’t been issued. “Hospital beds that ended up saving lives would not have been available because they would have been occupied by someone who could have been discharged,” he said.

Zucker concluded, “We made the right public health decision at the time, and faced with the same facts we would make the same decisions again. And just as a personal note, I feel for all the families who’ve lost someone.

“I often think about the sorrow that they’ve experienced because of the loss. I do hope that they find strength from the memories of their loved ones. I believe in my heart and my head that’s the only thing that helps get us through,” he said, referencing his own father’s death.

Empire Center analysis

Between March 25 and May 10, each new admission of a COVID-positive patient correlated with .09 additional deaths, with a margin of error of plus or minus 0.05, according to the analysis by Hammond and center fellow Ian Kingsbury.

Hammond and Kingsbury found that admitting any number of new COVID-positive patients was associated with an average of 4.2 additional deaths per facility — with a margin of error of plus or minus 1.9.

“The effect was more pronounced upstate — possibly because the pandemic was less severe in that region at the time,” the reports says, “so even a single exposure would have had a larger impact on the level of risk ….

“Also in the upstate region, facilities that admitted at least one positive patient during this period accounted for 82 percent of coronavirus deaths among nursing home residents, even though they had only 32 percent of the residents.”

The report also says, “The data indicate that the March 25 memo was not the sole or primary cause of the heavy death toll in nursing homes, which stood at approximately 13,200 as of early this month.

“At the same time, the findings contradict a central conclusion of the Health Department’s July 6 report on coronavirus in nursing homes, which said, among other things: ‘Admission policies were not a significant factor in nursing home fatalities’ and ‘The data do not show a consistent relationship between admissions and increased mortality.’”

That July 6 report attributed the surge in nursing home deaths largely to asymptomatic workers and visitors unwittingly spreading the virus before protocols were put in place.

However, the Empire Center report also says, “As with any such analysis, the results should be viewed with caution. Even a statistically significant correlation between two factors does not necessarily mean that one caused the other. The available data were also limited in potentially important ways — such as the lack of dates for the COVID-positive admissions.”

The report also includes a spreadsheet with raw data on COVID-19 deaths in nursing homes provided by the state’s Department of Health since Feb. 10, one week after a state Supreme Court judge ordered its release to the Empire Center under the Freedom of Information Law and six months after the Empire Center’s original FOIL request.

The spreadsheet lists nursing home deaths from March 2, 2020 to Feb. 9, 2021, listing the facility for each as well as whether the death occurred in the facility or out of it and whether it was confirmed as a COVID-19 death or presumed to be.

The report concludes, “When analysis is disaggregated by region (i.e. upstate or downstate), the models indicate that transfers from hospitals to nursing homes were significantly associated with nursing home deaths upstate but not downstate, where the population-wide infection rate was exceptionally high during the period in question.

“The coronavirus pandemic wreaked havoc in nursing homes across the country and around the world, including in jurisdictions that did not adopt policies similar to those in the Cuomo administration’s March 25 guidance memo. However, this analysis indicates that the guidance may have made a bad situation worse — and points to the need for further research to determine the best policy before the state faces another pandemic.”