COVID-19, Nursing Homes, and the Need to Protect the Elderly

*The term “resident” will be used to describe nursing home residents unless otherwise indicated.

**All data is accurate as of 10/06/2020

In early 2020 news began circulating that a life-threatening respiratory illness was sweeping across the world and had made its way to the United States. Reactions to the severity of the problem varied, but most jurisdictions seemed underprepared to deal with how COVID-19 would impact long-term care facilities, specifically nursing homes. On Saturday February 29, 2020, Washington state reported the first COVID-19 death in the United States, the first infected health care worker, and the “first known outbreak in a long-term care facility.” Within four weeks, it was reported that 39 residents at the Life Care Center of Kirkland, Washington had died of COVID-19.  Desperate and confused 911 calls documented the tragedy taking place.  The state’s experience made clear as early as April that, even before modes of transmission and the virus’s lethality were fully understood, COVID-19 presented an exceptional risk to older people with extant medical vulnerability.

As the winter months loom once more and viral illnesses typically spike, it is vital that the lessons of the pandemic learned so far be applied as meticulously as possible.  Interestingly enough, Life Care Center of Kirkland has not had a resident death from COVID-19 since the last week of May 2020. Kirkland’s home, King County, has the highest number of long term care facility associated resident deaths (492) of all Washington counties. Washington state is currently reporting 37.3  deaths per 1,000 residents. While this number appears bleak, it is less than half the death rate that Massachusetts, New Jersey, and Connecticut  have experienced among nursing home residents. Massachusetts cumulatively tops the list with 130.8 resident deaths per 1,000 residents. The state taking  the most flak for its handling of the COVID-19 crisis is New York, which, according to the U.S. Centers for Disease Control, has had the highest number of confirmed nursing home resident deaths of any state (4,652). The New York State Department of Health is reporting the lower number of 3,711 confirmed nursing home deaths. While it has been reported that New York has experienced just over 6,600 nursing home and adult care facility COVID-19 deaths, this higher number actually includes COVID-19 presumed and confirmed deaths.

Clearly, data issues persist around the COVID-19 epidemic and it’s fair to say that some of them will take years to sort out, which should tame the penchant to attribute all failures to political motivations.  But some lessons are straightforward. Earlier in the year New York Governor Andrew Cuomo was under fire for his handling of New York’s nursing home crisis, specifically a health advisory that instructed long-term care facilities to admit COVID-19 positive patients to their facilities. His executive order No. 202.10 afforded certain powers to Health Commissioner Howard Zucker regarding use of medical facilities. Zucker released a health advisory letter to nursing homes on March 25, 2020 explaining the Department of Health’s expectations for nursing home facilities:

No resident shall be denied re-admission or admission to the NH [nursing home] solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.

Zucker attempted to defend himself at a New York legislative session on August 3 regarding the topic of nursing homes and COVID-19 but was unable to offer satisfactory answers to multiple members. Senator James Skoufis inquired about how nursing home deaths were being counted:

As it stands, someone who’s in a nursing home as a resident gets infected in their nursing home but loses their life in a hospital or elsewhere is not counted as a COVID nursing home death. So, first, how many other states similarly do not count the aforementioned as a nursing home death?

Commissioner Zucker was unable to answer the question, and Senator Skoufis responded that his staff was unable to locate another state with the same counting method. Cuomo and Zucker may be unable to evade answering the question of how many residents were transferred to hospitals and died. Two bills have been introduced to the New York Senate that would require reporting of these numbers.

In late August, the Civil Rights Division of the U.S. Department of Justice requested nursing home data from New York state in order to “determine if the state orders requiring admission of COVID-19 patients to nursing homes is responsible for the deaths of nursing home residents.” The Assistant Attorney General for the Civil Rights Division of the Department of Justice, Eric Dreiband, said, “[p]rotecting the rights of some of society’s most vulnerable members, including elderly nursing home residents, is one of our country’s most important obligations… We must ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk.” The Department of Justice is also seeking data from New Jersey, Pennsylvania, and Michigan, all of which implemented nursing home admission and readmission policies similar to New York’s. Both Governor Cuomo and Michigan Governor Whitmer are brushing off criticisms of their handling of the COVID-19 crisis as politics.

At this stage, regardless of the retrospective examination of the policy failures here, it is vital that states and the federal government coordinate effective measures to keep COVID-19, or COVID-20 if another version emerges, away from the people most at risk from its ravages. It may never be discovered how many nursing home deaths truly occurred in New York state and across the nation, but our nation must take proper responsibility for emergency virus preparedness plans and  strengthen those plans to avert preventable deaths, especially among vulnerable populations. While most people could not have predicted the onset of COVID-19, health officials should have; it is their job. Health officials are responsible for ensuring that emergency plans are in place to deal with pandemics.

For example, New York state has implemented permanent legal actions regarding pandemic preparedness including storing two months’ worth of  personal protective equipment (PPE) for long-term care facilities. This is a start, but much more is needed, including measures that address isolation of the elderly.  The most appalling scenes of many during this summer of travail are those of people dying of COVID unable to interact with or touch their loved ones.  It would be far better to enhance measures that allow the medically vulnerable maximum protection from the virus before it hits them, including the chance to be cared for at home. Hopefully, the Trump Administration’s creation of the Independent Coronavirus Commission for Safety and Quality in Nursing Homes, under the direction of the Centers for Medicare and Medicaid, will help to answer some of these questions and offer constructive guidance.  The Commission’s report and recommendations are due this fall.

The elderly are the bedrock of society. They are the giants whose shoulders we have stood on to build up a life. They are our soldiers from hard-fought wars including World War II, Vietnam, and Korea. They are survivors of the Great Depression. They are entrepreneurs and inventors; doctors and nurses; pastors and counselors. We owe our lives to them and must exhibit strength and responsibility in caring for our most vulnerable members, as they have cared for us. Aid should come to them first, not last.

Hannah Howard M.S., is a research associate at the Charlotte Lozier Institute

Special thanks to Abigail Coupe for contributing research to this report.