Many of the deaths in New Jersey nursing homes were avoidable, says a state legislator on a panel investigating nursing home policies during the COVID-19 crisis.
“We had evidence that the policy we were going to pursue would result in deaths,” New Jersey state senator Declan O’Scanlon, Jr. (R-District 13) told Health Care News. “The directive issued by the state’s Department of Health ‘essentially forced’[nursing homes] to take COVID-19 positive patients.”
Testing patients for COVID-19 prior to admission or readmission was “prohibited” by the directive, O’Scanlon says.
“If you can’t test, you don’t know who to cohort (separate),” O’Scanlon said.
New Jersey’s nursing home and long-term care facilities (LTCF) have been the deadliest in the nation during the pandemic (see related article, page 14).
“Optional in Name Only”
New Jersey could have changed its policy when it became common knowledge that nursing home and long-term care residents were particularly at risk for dying from COVID-19, O’Scanlon says.
“We should never have cut and pasted New York’s directive,” O’Scanlon said.
New Jersey state senators posted the March 31, 2020 directive issued by State Health Commissioner Judith Persichilli to nursing home and LTCF operators, along with the directive in NY, to show the similarities. It states, in part, “no patient/resident shall be denied re-admission or admission to the post-acute care setting solely based on a confirmed diagnosis of COVID-19.”
Although the directive banned hospitals from discharging patients whose COVID test results were unknown, it stated, “post-acute care facilities are prohibited from requiring a hospitalized patient/resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.”
The directive stated that “as always, strict adherence to infection prevention and control measures and environment cleaning must be made a priority during this public health emergency.” However, there is no language stating that facilities have the right to refuse patients if the facilities are unable to isolate patients and their caregivers from the rest of the population, or if they did not have adequate personal protection equipment (PPE).
O’Scanlon said lawmakers talked with several LTCF operators.
“None of the operators could comply,” O’Scanlon said.
As a result of the directive, nursing homes and LTCFs admitted COVID-19 patients, interpreting it as a requirement, regardless of their ability to properly sequester or care for them. Admission of COVID-19 patients was “optional in name only,” O’Scanlon said.
The state-run veterans’ homes are a case in point, O’Scanlon says.
The homes “were decimated because they followed their own policies,” O’Scanlon said. “They did not effectively cohort residents in their own facilities.”
None of the privately-owned LTCFs could comply with the State’s directive because they could not test and separate, O’Scanlon says. The state’s conference call with nursing home operators on March 31 was a “smoking gun,” because it suggested state administrators knew what they were up against, according to O’Scanlon.
“The actions the state [administrators] took themselves, I presume, is their interpretation of what they expected from privately-owned facilities,” O’Scanlon said.
The Blame Game
Persichilli has blamed the nursing home deaths on LTCF operators.
“Uneven. Disappointing. Lacking in communication, lacking in basic blocking and tackling,” Persichilli told NJ.com on May 20, 2020.
Both the state and nursing operators share the blame for any negative consequences as a result of the directive, says Richard Mollet, executive director of the Long Term Community Care Coalition, a national advocacy group.
The state “did not force the nursing homes to accept residents,” Mollet said in a March 5 interview in NJ Advance Media. “They counted on the [nursing home operators] only taking residents for whom they could provide safety and appropriate care. The issue here is the New Jersey Department of Health never holds facilities accountable.”
Gov. Phil Murphy has pushed back on criticism.
When asked whether he regretted putting sick people in nursing homes in an interview on March 7 on Face the Nation, Murphy said “if the operators followed, and we believe most, thank God did, the instructions that I just laid out [if you can’t separate and we will find an alternative], that was the right course to take,” said Murphy. “We’ve been transparent from day one.”
Even if the facilities could separate residents and staff, there was skepticism among operators about its effectiveness, reported NJ Advance Media on March 22.
Residents and patients with COVID could have remained in hospitals because “even though capacity was increasing in the hospitals, it never reached a tipping point,” NJ State Sen. Joe Pennacchio (R-26) told News 12 The Bronx on March 17.
Pennacchio chaired an independent panel hearing on the state’s nursing home deaths.
O’Scanlon, who sat on the panel, says the Democrats and the governor’s office were repeatedly invited to participate in the hearing but refused. A spokesperson for the governor called it “a nakedly political stunt.” The legislators are working to form a committee with subpoena power.
NJ’s Broken Long-Term Care
New Jersey’s response to COVID-19 is indicative of a broken system of long-term care going back to at least 1996, says Stephen Moses, the president of the Center for Long-Term Care Reform. Moses wrote a report for the state’s Department of Health and Senior Services at the time entitled, “The Jersey Share: How to Pay for Long-Term Care with Less Federal Money, A Case Study in New Jersey.”
“If they’d only listened then and acted, they wouldn’t be in this mess,” Moses said.
In the report, Moses wrote, “New Jersey is caught in a vise. One jaw of the vise is demographics, an aging population with expensive health care needs. The other jaw is limited revenue, the necessity to constrain taxes to achieve a healthy economy. The screw is turning. The vise is closing. A bad recession now would cause a terrible squeeze. The aging of the baby boom portends a fatal fiscal crunch for the state.”
“As for the current situation, the vise has closed,” Moses said. “Medicaid pays too little to ensure quality care and there is nothing New Jersey can do about it. Stricter enforcement without more spending is like trying to get blood out of a turnip, but more revenue for Medicaid only digs the hole deeper.”
Michele Mueller (mgmueller@fountainheaddesigngroup.com) writes from Las Vegas, Nevada.
