This is a difficult post to write, and a difficult post to read. I’ve thought about it for months, and what I’m going to say must be said. I see no way around the conclusions I’ll draw. So here goes.
On March 25, 2020, during the height of the COVID-19 pandemic in New York State, the New York State Department of Health, under the signatures of Governor Andrew Cuomo, DOH Commissioner Howard Zucker, and Executive Deputy Commissioner Sally Dreslin, issued a directive to New York State nursing homes requiring nursing homes to accept patients for re-admission or admission regardless of their COVID-19 status. The salient paragraph is:
No resident shall be denied re-admission or admission to the NH 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. [underline in original].
So the directive specifically prohibited testing elderly patients who were recuperating from COVID as a condition for admission or readmission to nursing homes. The DOH requirement was that nursing homes be blind to the COVID status of elderly people recovering from the infection who were entering their facilities.
I am a physician practicing in New York but I was unaware of this directive when it was issued (it was not directly relevant to my practice). I became aware of it a month later, and I honestly couldn’t believe it. Although I am not an epidemiologist or a public health specialist, I had been watching the news. I knew that nursing homes were COVID death traps. Every night on the news I watched stories of the coronavirus sweeping through nursing homes, killing countless elderly residents.
New York was not alone—New Jersey, Pennsylvania, and Michigan also mandated that nursing homes accept potentially COVID-positive patients. These regulations were so bizarre—so inexplicable—that the Department of Justice has demanded that all these states submit data on these decisions to the DOJ for review.
The New York Department of Health directive—which had the force of law—went into effect on March 25 and was in effect for 46 days (it was rescinded on May 10—in large part due to public outrage). In some states, the pattern is thought-provoking. Pennsylvania’s health secretary removed her own mother from a nursing home, while the dangers of mandating the return of COVID-positive patients to nursing homes was discounted.
Coronavirus took an enormous toll on the citizens of New York State. According to the New York State DOH’s own statistics, 6,326 COVID-positive patients were returned to nursing homes under the DOH mandate. Many of our deaths were those of elderly nursing home residents. Exact figures are hard to come by because the official New York State count of nursing home deaths cannot be accurate. Unlike nearly all other states, New York attributes COVID deaths to the locale in which death occurred, not the locale in which the infection was acquired.
For example, if you got COVID in your nursing home and were transferred by EMS to a hospital emergency room, then died a minute after your arrival in the ER, New York attributes your death to the hospital, not to the nursing home. So the 6432 elderly nursing home residents who died of COVID (as tabulated by New York State) were only those residents who actually died in the nursing home itself. Given how important it was at the time to understand where and how the virus was being spread—and not merely the location in which victims finally die—New York’s unusual policy in recording the location of COVID deaths sounds like an effort to draw attention away from the prevalence of COVID in New York nursing homes.
One result is that we can’t know how many deaths of patients who acquired the virus in nursing homes were due to the directive that forced the homes to admit potentially infectious residents. But it is likely a substantial portion—probably in the thousands. For one thing, reasonable estimates of the number of deaths in patients who acquired COVID in nursing homes—the number that really counts—is probably at least twice the official number of nursing home deaths, and perhaps more. Given the very high infectivity of the virus and the close quarters usual in nursing homes, it is reasonable to infer that the number is several times the number that New York authorities list as having died at a nursing home. In my view, it is likely that well over 10,000 deaths were directly caused by the health department order.
So we now face this question: Why did New York State health authorities and the governor of New York State order nursing homes to admit potentially infectious patients, and order nursing homes to disregard COVID testing as a criterion for admission—in the midst of a pandemic that was known to be exceptionally lethal to elderly people in nursing homes? Please note that the directive was a legal order, not merely a recommendation and not merely permission to overlook COVID status in admissions. Nursing homes were legally required to admit these patients, and legally prohibited from using COVID tests—even positive COVID tests—as a criterion for refusal of admission.
New York State authorities are evasive about their rationale for demanding that nursing homes accept COVID-positive patients. From the official DOH report on the nursing home deaths:
[New York State never] directed that a nursing home must accept a COVID-positive person. In fact, the opposite is true. By state law, a nursing home could not accept a COVID-positive person unless the nursing home could provide adequate care. Title 10 of New York State Codes, Rules and Regulations clearly states a nursing home, “shall accept and retain only those nursing home residents for whom it can provide adequate care.” It was in the nursing homes’ sole discretion to determine if they would accept the COVID-positive person and if they could provide adequate care. Thus, it would be against the law for any nursing home operating in New York State to accept a patient it could not care for—in this instance that specifically meant a nursing home’s ability to properly isolate patients and follow protective procedures. [emphasis on “directed” in italics in original]
This self-exculpatory claim is not credible. What New York State is claiming is that they left it up to the discretion of the nursing homes although that is certainly not the obvious language of the directive. Recall that at the same time, during the height of the pandemic, New York imposed mandatory closure of churches, schools, colleges, universities, restaurants, and countless businesses, and imposed mandatory face masks on all citizens when in public.
Visits by relatives were banned at nursing homes—but admission of COVID patients, regardless of their infectious status, was mandated. In short, draconian measures were undertaken to stem the pandemic in all sectors of society except nursing homes. Churches, synagogues, restaurants, businesses, schools etc. were not permitted to open and allow COVID-positive individuals to use their facilities during the height of the pandemic even if they could confirm “adequate” precautions. But in nursing homes, the opposite was done.
Recall that all this has happened during an era when digitization and the internet make it quite easy to find out what is really happening in many situations, in hours or even seconds. Carefully kept databases can provide ongoing monitoring of the effects of policies. The statistics themselves provided a loud signal. Why was the signal unheeded?
The New York DOH’s effort to pin the blame on the nursing homes—which were merely following a clear state directive—enhances, rather than mitigates, New York State’s culpability in this disaster. Which forces the question: Why did New York State issue this lethal directive which explicitly increased the risk of infection of nursing home residents? There are four possible reasons, that I can see:
- Negligence: New York State authorities didn’t pay attention to what they were doing. This is transparently not the case. The directive was emphatic and specific and it carried the force of law. The salient portion was underlined. It was issued under the imprimatur of the governor and the leading state health authorities and it was kept in force for 46 days despite criticism. It simply cannot have been an inadvertent outcome of panic.
- Incompetence: New York State authorities didn’t understand what they were doing. The history makes that difficult to believe. The New York State Department of Health is one of the premiere public health agencies in the world with exceptional expertise in just these situations—disease control and epidemics. They employ and have at their disposal thousands of leading public health experts. In my experience, they typically know exactly what they are doing.
- Triage: New York was overwhelmed with COVID patients, and hospital beds needed to be opened up. This is the official explanation and it was invoked specifically in the directive. It’s nonsense in my view. New York was not facing a situation in which triage was warranted. Triage is warranted only in a situation in which immediate medical needs outstrip medical resources, and then medical care is directed to the most salvageable patients. Because triage is the official explanation, it is worth unpacking at more length:
New York did not require triage for three reasons:
a) There were thousands of unused hospital beds in New York which were kept open for just this situation—in which recovering COVID-positive patients could be cared for until they were not infectious and could safely return to the community. The hospital ship USNS Comfort, docked in New York harbor, had 1000 beds—it only treated 179 patients. The purpose-built $21 million Red Hook Brooklyn hospital facility was open and treated zero patients. The Jacob Javits Center was prepared to handle thousands of COVID patients—it remained “almost empty.”
There were other facilities at regional medical centers—my hospital at Stony Brook (50 miles from New York City) built several tent hospitals with a total of over 2000 beds—that were unused. We could have used empty buildings to house these elderly people—empty schools and hotels could have been converted to “half-way houses” from hospitals to nursing homes until the patients tested negative. There was never a lack of beds—not even close. Literally thousands of beds allocated for just this purpose went unused, while the state forced COVID-positive patients into nursing homes.
b) There is no such thing as preemptive triage. You don’t send contagious people to infect vulnerable people in anticipation of a bed shortage, just as a military doctor in wartime wouldn’t let wounded soldiers die just because he might need open beds for the next battle. Triage, if called for, is a response to a present crisis, not an anticipation of a future one. I work as a neurosurgeon in a trauma center and I would never deliberately let a sick patient die because I anticipated the need for open beds in the future. To do so would be malpractice of an extreme order—it would be a crime. Triage is never done in anticipation of the future.
c) The purpose of triage is to optimize medical outcomes despite inadequate resources. The New York DOH directive markedly worsened medical outcomes despite abundant resources—thousands of vulnerable people were infected and died while thousands of open hospital beds went unused.
So I don’t think triage is a legitimate justification for the DOH directive. Of course, it is possible that authorities sincerely thought triage was a justification but were mistaken. In other words, the incompetence excuse again. But, as I’ve said, I find that hard to believe because, in my experience, New York’s public health authorities are not incompetent.
- Homicide?: New York State authorities deliberately sent infected patents into nursing homes in order to kill people. This is the only other explanation I can see, although it is difficult to accept. It’s almost unthinkable, really. Yet I don’t think New York authorities are either negligent or stupid—they are experts in epidemiology and world leaders in public health, and there was absolutely no triage situation. So might they have done what they did, in some sense, knowingly?
A powerful argument against any such suggestion is absence of motive. What could the motive possibly be?
Three possible motives for knowingly adopting a policy that would lead to the spread COVID in nursing homes come to mind:
1) Someone, perhaps a sociopath, just wanted to kill people. There are people, of course, who use their authority to kill, often in response to a belief, for example. We’ve seen many examples, especially in recent centuries. I have difficulty assigning this motive to New York authorities so I’ll set this motive aside for now.
2) The authorities wanted to save money. Nursing home residents are very costly and much of that cost—likely in the hundreds of millions of dollars annually—is borne by the state. It would be a remarkably creative use of the pandemic to help defray the inescapable costs. Cost-cutting is a priority in the COVID era, and state authorities were more or less a death panel.
3) The authorities, for some reason, wanted to maximize the political impact of the pandemic. Deliberate spread of COVID in nursing homes—nursing homes were known early to be the most deadly incubator of the disease—ran up the death toll enormously. It probably doubled or tripled it. It’s not what you’d do if your motive is to minimize the impact of the pandemic. If the motive of the state was to maximize fear, panic, and opportunities for lockdowns and crackdowns, this DOH directive would be very effective. Most New York residents would not immediately realize that the huge spike in deaths was coming largely from one specific source.
This is what I know for sure: For all practical purposes, the DOH directive was essentially an order to spread COVID to people in nursing homes, a policy which any reasonable medical professional should have known would kill people. The directive not only permitted the admission of COVID-positive patients into nursing homes, it demanded it, under penalty of law. If a patient were spewing COVID from every orifice, and a nursing home refused admission on that basis, it would be subject to legal sanction, including revocation of its license. What could possibly motivate such a directive?
Before you dismiss the problem—before you say “all this logic is fine, but I still don’t believe it was deliberate,” remember that this atrocity has taken place in a culture in which wholesale killing of children in the womb is a ‘right’ celebrated on the Manhattan skyline, physician-assisted suicide is increasingly accepted and is legal in several states, and euthanasia is not far away. I believe that, given the evidence from the COVID-19 situation, elderly people in nursing homes are just the next group on the agenda—after unborn children and the terminally ill.
In my view, it’s reasonable to suspect that some New York State authorities saw an opportunity to save a lot money by culling the herd and at the same time stoke public fear, thus forcing habitual compliance with state directives. At the very least, they did not seem to value elderly patients in the same way they did other patients. They acted as if they could not foresee the likely consequences of their directive.
Many readers will find this post upsetting. It was upsetting for me to write it. I’m still, frankly, shocked by this, and, after all these years in medicine, I’m hard to shock. The people who did this need to explain themselves.
Part of my dismay is that I’ve been dealing with the NYS DOH for decades–I’ve always respected them (and in fact I did per diem work for them as a reviewer for physician misconduct for decades). Yet this is unfathomable. This is worst thing medical authorities have done in the US since the Tuskegee scandal (where black American sharecroppers were not given penicillin, only placebos, for syphilis—to track the natural course of the disease) But in some ways, this is worse than Tuskegee. At least in the Tuskegee Study there was an—ethically horrendous—scientific rationale. There is no rationale at all for the nursing home deaths, so far as I can see, except perhaps mere cost-cutting or the instigation of public fear by running up the death toll. This verges on homicide.
If there is a plausible innocent explanation for the DOH directive that I’ve missed, I would love to hear it. I would love to write a mea culpa titled “Thank Goodness I’m Wrong.” But I don’t think I’m wrong. I think the most plausible conclusion is: New York State government and health authorities enacted a policy that at least some of them must have known would spread COVID-19 in nursing homes and kill elderly people. We must not dissemble and turn away.
I’ve often wondered, contemplating atrocities in communist or fascist countries, how I would have responded had I been in the midst of them. What would I have done if I were a doctor or a citizen during the Holocaust or the Holodomor? I would like to think that I would do the right thing, but it’s not always so easy. In the midst of an atrocity, it may be difficult to understand exactly what’s happening and to have the insight and gumption to speak out. It’s easier to stay quiet, to look away, to dissemble and deny the obvious.
Thus, we need to face what New York and several other states did to nursing home residents during this pandemic. We need to ask hard questions and refuse to settle for anything less than the truth. What happened in nursing homes during the pandemic heralds an exploding depravity in our culture, and we will be called to account for what we did (or didn’t do) about it.
