DOH nursing home directive missing key info

NewsChannel 13 has been covering the controversy over COVID-related deaths in nursing homes for months.

Gov. Cuomo and state Health Commissioner Dr. Howard Zucker have repeatedly said their March 25 directive followed federal guidelines. But a legal expert said that’s not accurate.

"There’s the CMS guidance, that’s a March 13th guidance, and I’m going to quote from it," Zucker said in the Friday, Feb. 19 press briefing. "’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,’ end quote. As long as a facility follows the transmission-based precautions. I will add that, it’s very important."

It is important, but that final point was actually left out of the state’s March 25 guidance to nursing homes.

However, it was in the Center for Medicaid Services guidance from March 13. NewsChannel 13 obtained a copy of it from the agency. We also got ahold of the New York State Department of Health’s March 25th directive, which makes no mention of a facility being able to deny admission based on an inability to provide proper care.

Zucker addressed that in the governor’s briefing last Friday.

"If they could not accept a patient, they should not admit the patient," he said. "It is against the law to take someone that they cannot care for. We simply said you cannot deny admission based on COVID status. We never said you must accept. We said you can’t deny it."

Since the state hasn’t responded to requests for clarification on that specific point, NewChannel 13 went to an attorney to ask if the directive should’ve expressly said that. Michael Feldman, an attorney with Finkelstein and Partners, said yes.

"The state directive does not copy the federal directive," Feldman said. "It’s not the same language."

There are clear differences in the wording of each document. The state told nursing homes, "No resident shall be denied re-admission or admission based solely on a confirmed or suspected diagnoses of COVID-19."

Yet the CMS guidelines said nursing homes "should" admit any individual that they would normally admit, so long as they can provide proper care.

"Federal guidance says that the nursing home should admit any individual that they would normally admit to their facility," Feldman said. "The word should does not mean that they must. The word should is conditional it’s up to the discretion of the facility depending on what their ability is."

Cuomo addressed recent coverage of the March 25 directive last Friday, which he said Zucker issued.

"It’s his decisions that people now question with no credential. That’s the amazing thing about politics, you can make any accusation, no evidence, no background," Cuomo said.

NewsChannel’s report is based on documentation released by both DOH and CMS. You can see them for yourself here:

• NY State Attorney General Report January 2021
• CMS Federal Guidance March 13, 2020
• New York State Department of Health March 25, 2020 Nursing Home Directive