By Bill Hammond
Credit: The Empire Center
Five years after the coronavirus pandemic, the state Department of Health is pleading ignorance about one of its most hotly debated policy choices of the crisis — a directive that sent thousands of infected patients into nursing homes.
Responding to queries from two elected officials, the department refused to say whether it now considers that March 2020 policy to have been consistent with federal guidelines at the time. Instead, it deflected the question to unnamed “former officials” who were in charge when the policy was issued.
“To the extent you have questions or seek analysis regarding the March 25, 2020, advisory or actions taken by the former administration, we respectfully suggest you direct such questions to, or seek such analysis from, those former officials,” said the Oct. 3 letter, which was signed by the department’s general counsel, Kathy Marks.
This dismissive non-answer sends a dismaying message to New Yorkers who were hoping the department would seriously analyze its performance during the coronavirus disaster — and thereby prepare itself to do better when the next virus arrives.
The March 2020 directive, issued in the midst of New York City’s harrowing first wave, compelled nursing homes to accept Covid-positive patients being discharged from hospitals. More than 9,000 patients were transferred under the policy before it was rescinded six-and-a-half weeks later.
When deaths in nursing homes soared soon thereafter, then-Governor Andrew Cuomo faced criticism for a policy that seemingly had added fuel to the fire. While the policy did not cause all nursing home deaths, as some of Cuomo’s critics have hyperbolically claimed, there was a statistical correlation between patient transfers under the policy and higher death tolls in the facilities that received them.
Cuomo and other officials, including former Health Department Commissioner Howard Zucker, have defended the directive as an attempt to make room in hospitals for a flood of additional patients, which later turned out not to be as large as feared.
Cuomo and his former aides have also maintained that the policy was consistent with — and even dictated by — federal guidance from the CDC and the Centers for Medicare & Medicaid Services.
This latter argument has been widely disputed. Critics (including this author) have noted, among other issues, that the CDC and CMS guidelines took pains to emphasize that nursing homes should not accept Covid-positive patients unless they were prepared to follow infection-control procedures known as “transmission-based precautions” — a standard many facilities were not capable of meeting. The March 2020 directive did not include that warning or otherwise mention the federal recommendations.
Despite this and other discrepancies, Cuomo has continued to insist that his administration had merely followed the federal government’s lead. He stuck to that line in testimony before a congressional hearing and during his comeback campaign for mayor of New York.
Two skeptical officials — state Senate Health Chairman Gustavo Rivera, a Democrat from the Bronx, and U.S. Rep. Michael Lawler, a Republican from Rockland County — recently wrote letters to current state Health Commissioner James McDonald asking him to clarify his department’s view of the controversy.
Their request handed McDonald a teaching moment. Beyond giving his professional opinion on the merits of the March 2020 order, he could have explored the complicated and conflicting pressures on public health leaders in the heat of a crisis. He could have shown empathy for those who died and the survivors who grieve them. He could have spelled out the steps that he and his department are taking to avoid such tragic circumstances in the future.
He could have cleared up the misinformation spread by Cuomo and his defenders — and begun to rebuild his department’s bruised credibility.
Instead, through his lawyer, McDonald effectively blew the question off.
His excuse bears no scrutiny. Referring Rivera and Lawler to former official implies that there was a sharp break between the current and former administration, and that he has no way of knowing or commenting on what happened five years ago. This is obviously untrue.
Plenty of people who worked at the Health Department under Zucker and Cuomo are still working there today — including 15 of the 23 people listed as McDonald’s “executive leadership team” on the department website. Among the holdovers is Johanne Morne, whose tenure in the department goes back at least 18 years and who currently serves at McDonald’s executive deputy commissioner.
Surely someone on that team – or elsewhere in his agency’s staff – could have helped McDonald answer a basic question about a policy that was a big enough deal to become part of an impeachment probe and contributed to Cuomo’s decision to resign.
Let’s not forget that McDonald’s boss, Governor Hochul, was herself a product of the “former administration.” Cuomo may have shut her out of his inner circle, but he chose her as his running-mate, which is why she became governor in the first place.
The deeper point is that pathogens don’t care whose name is on the office door. Building proper pandemic defenses requires thinking beyond the term of any one governor or commissioner. It also demands willingness to confront uncomfortable questions and admit mistakes.
True preparedness would start with a full-bore after-action review of the state’s coronavirus response, not as a way of casting blame, but learning lessons. The consultant’s report ordered up by Hochul last year – which was poorly designed and riddled with errors – does not come close to filling that need.
Sending infected patients into nursing was one of many fateful decisions the state’s leaders made in 2020, and every last one needs to be fully analyzed to assure that things are handled better next time. Treating basic questions as if they’re political hot potatoes – and deflecting responsibility to the “former administration” — is the biggest mistake of all.
Bill Hammond is the Empire Center’s senior fellow for health policy.