Andrew Cuomo saw COVID-19’s threat to nursing homes — yet he still risked adding to it

A New York nursing home followed the governor’s order to accept COVID patients — 18 residents died of the disease

Published June 20, 2020 11:59AM (EDT)

New York Governor Andrew Cuomo (Getty/Drew Angerer)
New York Governor Andrew Cuomo (Getty/Drew Angerer)

This article originally appeared on ProPublica.

On April 3, Stephanie Gilmore, a 34-year-old nurse working at the Diamond Hill nursing home in Troy, New York, was summoned to a supervisor's office. The home's administrator and nursing director were there to relay some distressing news.

Gilmore said they told her that a resident in the home had recently gone to the hospital, where she tested positive for COVID-19. The resident was set to return to Diamond Hill, making her the first confirmed COVID-19 case at the 120-bed facility north of Albany.

The risks to the home's staff and other residents were obvious: The virus was ravaging nursing homes across the country.

But the week before, New York Gov. Andrew Cuomo and his health commissioner, Howard Zucker, had all but made such discharges mandatory. If a hospital determined a patient who needed nursing home care was medically stable, the home had to accept them, even if they had been treated for COVID-19. Moreover, the nursing home could not test any such prospective residents — those treated for COVID-19 or those hospitalized for other reasons — to see if they were newly infected or perhaps still contagious despite their treatment. It was all laid out in a formal order, effective March 25. New York was the only state in the nation that barred testing of those being placed or returning to nursing homes.

In the weeks that followed the March 25 order, COVID-19 tore through New York state's nursing facilities, killing more than 6,000 people — about 6% of its more than 100,000 nursing home residents. In all, as many as 4,500 COVID-19 infected patients were sent to nursing homes across the state, according to a count conducted by The Associated Press.

The state declined to say if it knew how many COVID-19 patients had been sent or returned to Diamond Hill. Officials with Diamond Hill refused to disclose the number.

By June, 18 of Diamond Hill's residents had died from the virus and 58 had been infected. At least 50 of the facility's more than 100 workers had also been sickened with COVID-19.

As deaths mounted at Diamond Hill, new COVID-19 patients were transferred in

Source: Rensselaer County Department of Health

States that issued orders similar to Cuomo's recorded comparably grim outcomes. Michigan lost 5% of roughly 38,000 nursing home residents to COVID-19 since the outbreak began. New Jersey lost 12% of its more than 43,000 residents.

In Florida, where such transfers were barred, just 1.6% of 73,000 nursing home residents died of the virus. California, after initially moving toward a policy like New York's, quickly revised it. So far, it has lost 2% of its 103,000 nursing home residents.

The decision by Cuomo and Zucker, whose department regulates all nursing homes in the state, drew fire as soon as it was announced from medical experts, nursing home operators and the families of residents. Cuomo himself had said protecting nursing home residents was the state's top priority, once calling the threat "fire through dry grass."

Steve McLaughlin, the county executive where Diamond Hill is located, viewed the state's directive as madness and chose to defy it, refusing to allow any COVID-19 patients to be returned to, or placed in, the one nursing home run by the county. The 320-bed facility, Van Rensselaer Manor, has not seen a single COVID-19 death.

Cuomo and New Jersey Gov. Phil Murphy have defended their approach as a way to open up crucial beds at a moment when it appeared hospitals would be overwhelmed by COVID-19 patients needing intensive care.

Charles Branas, who leads the epidemiology department at Columbia University's Mailman School of Public Health, said he could appreciate New York state's concern about a shortage of hospital beds in hard-hit areas.

"The New York state advisory looks like it was intended as a 'reverse triage' strategy to clear acute and critical care hospital beds, regardless of whether those beds had people with COVID-19 or not," Branas said. "Possibly, the positive trade-off they had in mind with the policy was that more lives would be saved with additional open critical care beds than would be lost in transfer to nursing homes."

But Branas said he believes the policy could well have increased New York's COVID-19 death toll by a magnitude that will be determined by future researchers. "If you introduce 4,500 people sick with a potentially lethal disease into a vulnerable and notoriously imperfectly monitored population," he said, "people are apt to die."

Former employees and families of patients portray Diamond Hill as a case study of a facility ill-prepared to cope with the complexities of containing the virus. The day Gilmore was told of the resident with COVID-19, she said she was also told that the information should not be shared with other staffers or patients — the management didn't want to provoke panic. Gilmore said she refused to go along and was later fired.

Three days after Diamond Hill was informed of its first case, six other residents tested positive, suggesting the virus had been present at the home for days, maybe weeks. The resident with COVID-19 who was returned to the home might have provided more fuel for the virus's spread.

Gilmore said the home made inadequate adjustments to try to care for its residents' safely. The COVID-19 patients were not isolated in a separate unit, and the facility lacked adequate protective gear for staff, she said. Gilmore and county officials said staffers who'd been exposed were encouraged to break their quarantines and return to work.

All told, the virus has claimed the lives of nine women and nine men at Diamond Hill, three younger than 60, three older than 90. Among those lost: a church deacon, a bowling alley manager, a former nurse and a beloved grandfather called Pop Pop by his grandchildren.

"Uncalled for, unnecessary, should never have occurred, and wouldn't have but for a tragically misguided order from the state," McLaughlin, the Rensselaer County executive, said of the outcomes at Diamond Hill.

The state Health Department said its personnel visited the home at least twice in April as part of broader efforts to track and control the virus inside the state's nursing homes. They deemed Diamond Hill capable of caring for its residents. Documents show Zucker, the health commissioner, was fully aware of events at Diamond Hill and reassured local leaders that the department had offered help moving patients to other facilities, but was told it wasn't needed.

Cuomo and Zucker, after escalating criticism, revoked the March 25 directive on May 10.

The Cuomo administration would not say who conceived of the order or answer the question of whether it believed the order had led to additional deaths. The administration said the Health Department was conducting "a thorough review" of COVID-19's impact on nursing homes.

"Science will determine whether the spread in nursing homes came as a result of returning residents or from asymptomatic staff who were already there," said Jonah Bruno, a spokesman for the New York Health Department.

Officials have said the directive was based on federal guidance saying that nursing homes could accept residents with COVID-19 as long as they had enough personal protective equipment, could disinfect medical equipment regularly, could limit the movement of patients, could house them in their own rooms if necessary and meet other requirements. It's not clear, however, who in New York was responsible for assessing this — the discharging hospitals, the receiving nursing homes or the state.

The state Health Department said Diamond Hill instituted "universal isolation precautions" but did not explain what that meant. The state also said the home ceased taking COVID-19 patients in late April but did not say what led to that development.

A complicating factor in evaluating the effect of the March 25 directive is that the state Health Department did not track in real time what happened when COVID-19 patients were transferred from hospitals to nursing homes. One senior nursing home industry official said the state Health Department didn't even begin comprehensively counting COVID-19 deaths in these facilities until well into April, although the department has disputed that claim.

Bruno said the agency had adjusted the way it tracked deaths as the pandemic progressed. He added that the state did hundreds of safety checks on homes throughout the state and cited scores for various shortcomings. But he would not say if that information had been shared with the hospitals and families making decisions about the suitability of homes to receive COVID-19 patients.

Diamond Hill sent ProPublica a statement saying that its management team had taken over the facility recently, and that it had taken dozens of measures to protect the facility from the coronavirus, informed residents and their families of the presence of the virus, and worked with the county and state to keep patients and staff safe. The facility appears to have changed its name recently to Collar City Nursing and Rehabilitation. The statement did not answer questions about Gilmore's specific allegations, citing "labor laws."

"Despite our stepped up efforts, the stealth virus entered our community in early April likely through someone who appeared perfectly healthy," the statement said. "While we were likely successful in delaying infections and reducing spread, like thousands of other skilled nursing facilities affected, we were not able to fully quash the virus."

In an interview, Ari Grinspan, Diamond Hill's CEO, declined to respond to questions about the state's March 25 order, the home's preparedness or the deaths of specific residents.

"Now is not the time for a facility to be in the spotlight," he said. "It gives others the chance to pick on you."

"There will be a time when the pandemic mercifully ends, that we can talk on the record about the role of facilities and the government in what has happened."

"It was chaos"

Gilmore started work at Diamond Hill on Oct. 31, 2019, months before the first virus case was reported in the United States. Even then, she said, the facility was in "damage control" mode.

Family members visiting a patient with dementia on her 74th birthday found her in a bed soiled with urine and feces. The state Health Department investigated, citing the home for failing to provide basic care, and the family shared pictures with the media.

Diamond Hill's owners brought in new managers, Gilmore among them, but in retrospect, she said, the move was mainly for optics. "So they could tell the news we have new management," she said.

Gilmore saw no sign of meaningful improvement. She and another former nurse told ProPublica the facility was chronically short of staff and equipment. Sometimes the facility had as few as four aides and one nurse looking after as many as 80 patients on a single floor, each suffering a variety of ailments that screamed for attention — incontinence, dementia, basic mobility.

In late February, she recalled an elderly patient being admitted from a local hospital. Gilmore said she told the administrators the resident needed a special oxygen delivery device to stay alive. Diamond Hill didn't have one, but the administrators took the admission anyway. Gilmore and another former Diamond Hill nurse said the patient died the next day.

Diamond Hill did not respond to questions about that patient.

As the coronavirus began to grip New York City, 162 miles south of Troy, Gilmore's concerns intensified. On March 13, she hammered out an email in all capital letters to the owners of the company, with the subject line: ATTEMPTING TO DO THE IMPOSSIBLE!

"As a nursing professional, it's unsafe to admit residents into the facility when we are critical with staffing and unable to care for the residents already in the building … I have tried to assist in any way that I can, however I am being stretched way too thin," she wrote.

Gilmore told ProPublica she advocated in meetings for hiring roughly 20 additional aides and six nurses.

Grinspan, the home's CEO, attempted to reassure her, she said.

"We are working feverishly on hiring and bettering the situation, while we hope our appreciation to you and your peers are known," he said in an email back.

Gilmore thanked him, but the situation only got worse. She said she checked in as many as five new patients per day coming into the facility's 40-bed rehabilitation unit from all over the capital region. To her, it seemed only a matter of time before the virus began to spread in a facility already straining to provide proper care.

In reviewing paperwork for new residents, she became even more troubled. There was no indication whether incoming patients had ever been tested for the coronavirus.

Gilmore said her superiors brushed off her concerns, offering vague promises to isolate new residents. She saw little evidence that the home had the space or staff to do that.

Then came the April 3 meeting with her superiors about the woman who was diagnosed with COVID-19. With the request to keep it secret, her frustration boiled over.

"We aren't going to tell the direct care staff that they were exposed?" she said she asked.

"No," she recalled her bosses saying. "We don't want to cause a panic."

"I was like, well, we can't do that," she said. She thought it might be against the law.

Diamond Hill, in its statement to ProPublica, said it alerted all residents, their families and the state Health Department of any coronavirus infections in a timely and responsible manner.

But Gilmore said she left her boss's office and called the county Health Department herself. By coincidence, she reached Shannon Testo, a registered nurse in charge of communicable disease testing. Testo, who also spoke to ProPublica, told Gilmore that she had tried to contact Diamond Hill earlier that day.

She needed the administrators there to tell her who the positive patient had been in contact with, but she told Gilmore the home's administrators had stopped returning her calls.

Gilmore gave Testo a handwritten list of staff that had treated the patient. She was on it. Testo told her she would have to quarantine herself for 14 days. Gilmore signed an order from the county promising to do so.

Later that day, Diamond Hill's management circulated a memo to staff members informing them that the home had its first coronavirus case and that many of them had been exposed.

Several staffers called out sick. Some, like Gilmore, also quarantined themselves at the county's request.

After Gilmore's call, Testo and Lisa Phillips, the county Health Department's director of patient services, said they reported the situation to the state Department of Health, which then tested 30 randomly selected residents on April 6 using the limited number of tests available at the time. The county said at least six tests came back positive. The state told ProPublica it tested 26 residents and three came back positive.

Testo and Phillips said they tried to trace the contacts of the six positive patients, but Diamond Hill declined to answer their questions.

"With other facilities, the administrators gave us all the information we needed about who the positive patients may have had contact with," Phillips said. "But Diamond Hill, they kept telling us that the staff was protected, they had PPE, and therefore they had no contact, but then we started getting calls from other people who worked there saying they did not have PPE."

Testo and Phillips also said they later received reports from Diamond Hill employees that the administration tried to entice their employees to return to work before they completed their 14-day quarantines.

"They were offering Dunkin' Donuts gift cards to staff members who were sick but had no fever," Testo said.

Diamond Hill did not respond to the county's specific claims about how it managed the outbreak, but it insisted in its statement that it had cooperated with both the state and county to combat the virus's spread.

Gilmore said she twice received requests from Diamond Hill administrators to come back to work in spite of the county's order that she stay home. She tested negative for the coronavirus and returned to work on April 13. When she came back into the nursing home, she could not believe her eyes.

The facility had fewer staff than ever, but more patients. Gilmore said at least four aides and two nurses, including one who handled infection control, had quit. Others called out sick for fear of exposure. Those who continued working often had no protective gear. Patients who had the coronavirus were housed right next to those who did not, or even in the same room. "It was chaos," she said.

"Their system was that they would keep everyone new to the facility in isolation for seven to 14 days, but some of them are not coherent," Gilmore said. "They have dementia, and they were just wandering around."

At that point, Gilmore said Diamond Hill's corporate parent, the WeCare Centers, dispatched a new nurse manager to help bring some sense of order to the growing crisis. Gilmore said the new manager made things worse by continuing to insist that the facility was doing just fine.

She said she complained to him and then sent another email to Grinspan, the CEO, which she shared with ProPublica.

"I would not have reached out, if this didn't require immediate attention," she wrote. "These issues have been a problem since before this covid situation. The staff are coming to me with concerns... about residents covid status being withheld and PPE. The state already has issues with the way the facility handled the situation."

"I have seen nurses come and go as fast as they came due to a lack of staffing, support and appreciation," she said.

Gilmore said she was fired on April 15, two days after she sent her email to Grinspan.

She said she was told that she was not management material and was in fact "anti-management."

To the surprise of Testo and Phillips, even as the case counts and staff complaints grew at Diamond Hill, state health officials seemed fine with allowing more COVID-19 patients to be discharged to the facility. The county officials said they were on weekly conference calls with the state Health Department and the home's top administrators throughout April.

"They were telling the state that they were able to take more patients and the state wasn't getting involved. We didn't necessarily agree, because we were getting calls from their staff saying they were in crisis mode," Phillips said. The state's people raised no objections, however. "They were saying, 'If the [hospital] feels it's safe to discharge residents there and they say they can accept the patient, then that is their decision.'"

Documents show that Zucker, the health commissioner, said the facility had been assessed multiple times during April and into early May, and that no deficiencies were found.

"We have been in frequent communication with Diamond Hill nursing and rehabilitation center and they have attested to the Department that they are in full compliance with state and federal guidelines and have stated unequivocally that they are in need of no further assistance at this time," Zucker wrote in a May 10 letter to McLaughlin, the county executive.

Gilmore described her experience on local television and has filed a complaint against her managers at Diamond Hill with the New York State Division of Human Rights, alleging employment discrimination.

ProPublica shared Gilmore's story with the state Health Department. In a statement, it said that it had no record of her complaint, but that her "allegations would be unacceptable if true."

Phillips and Testo said that if Gilmore hadn't spoken up, the outbreak underway at Diamond Hill might have escaped scrutiny for far longer.

"Without those calls to us, the state never would have investigated," Phillips said. "She was worried that the administration was not being forthcoming with information we needed. So she took it upon herself to alert us."

The calls to the state came too late for Cynthia Falle, 73, a quadriplegic woman who had spent three years at Diamond Hill.

In mid-March, she contracted pink eye and showed other signs of failing health. Her family said they urged the administration to test her for the coronavirus. Twice, the facility refused, insisting a test was unnecessary and all she needed were antibiotics.

Her brother, Robert Falle, said that he complained to the state Department of Health, and that by late March the department had ordered Diamond Hill to test her. The facility told Sandra Wood, Falle's niece, the test had been done on April 4, and that on April 6 it had come back negative.

On April 13, a deteriorating Falle was taken to Samaritan Hospital. Wood said the hospital staff told her records they received from Diamond Hill did not reflect a COVID-19 test of any kind.

Wood said Falle was tested at Samaritan, the result was positive and she was dead within a week.

Diamond Hill did not respond to questions about Falle's care.

Falle had been diagnosed with cerebral palsy at age 3 and eventually lost the ability to move her limbs, yet her family said her life remained remarkably full until COVID-19 took it away. She'd fallen in love, traveled with her partner of 38 years, became a church deacon and worked with health care professionals to improve care for people with disabilities.

"Cindy will be remembered for her indomitable spirit, sense of humor, love, genuine interest in the people she knew and her amazing ability to thrive even under what many would consider insurmountable odds," her obituary read.

"It was dictatorial"

McLaughlin, the Rensselaer County executive, watched the troubles unfold at Diamond Hill with a sense of impotent fury. The home was the county's worst hot spot, its cases and deaths dwarfing those everywhere else.

He'd had a simple reaction to Cuomo and Zucker's March 25 order — "No way. Not ever." — and had blocked the transfer of COVID-19 patients from hospitals to the county-run Van Rensselaer Manor unless they tested negative before being moved. But he couldn't do that at Diamond Hill, a privately run home overseen by the state.

Some New York nursing home professionals themselves, already hit hard by the pandemic, say they had concerns much like McLaughlin's about the New York order. Those concerns were then compounded, they said, by the state acting without consulting them.

"We were struggling and overwhelmed already," said Elaine Healy, a medical director for a New Rochelle nursing home and acting president of the New York Medical Directors Association. "When the directive came, the thing that was most stunning was not only the content but the manner in which it was delivered. It was a one-way communique with no opportunity for dialogue and no opportunity to express concerns with the Department of Health. It was dictatorial."

Other states, notably California, adjusted their policies on hospital discharges to nursing homes after getting the industry's input, said Christopher Laxton, who heads the Society for Post-Acute and Long-Term Care Medicine, an organization of some 55,000 nursing home medical directors, physicians, nurses and other health care professionals.

Not New York, Laxton said, where Cuomo and Zucker "unaccountably failed to include clinical expertise in operational leadership when these policies were formed and we don't know why."

Bruno, the Health Department spokesman, disputed that claim. In an email, he noted that the state had weekly webinars with health care professionals beginning Feb. 2 and said it had engaged in ongoing dialogue with a range of experts, doctors, nurses, family members and advocates.

"There's been no shortage of industry, expert or stakeholder opinions in anything we've done during the most devastating global pandemic in a century," he said.

The state, in defending its performance in safeguarding nursing homes, told ProPublica New York ranks 35th among the 50 states when counting nursing home deaths as a percentage of its statewide loss of more than 30,000 lives.

McLaughlin inveighed against the state discharge order in interviews and on Twitter, attacking its logic in his more rural part of New York. In an April 28 letter petitioning Cuomo and Zucker to end the policy, he noted that hospitals in Rensselaer County had not been overwhelmed by the virus and that beds for COVID-19 patients remained available.

He wrote again on May 1, saying Diamond Hill was tied to 12 of the county's 20 COVID-19 deaths to that point and asking why COVID-19 patients were being discharged to a facility with long-standing care problems, particularly with infection control. He noted Diamond Hill had been cited in a June 2019 federal report as needing special oversight.

McLaughlin has long been at odds with Cuomo over a variety of issues, and he has sharply criticized various aspects of the governor's preparation for, and response to, the COVID-19 pandemic.

McLaughlin, in an interview with ProPublica, said the governor was a bully who ran from responsibility when his policies went awry.

Rich Azzopardi, an adviser to Cuomo, had acerbic words for McLaughlin.

"From the very beginning of this global pandemic, our response has been based on data, science, and the ability to adjust our approach as the evidence dictates," he said in an emailed statement. "Steve McLaughlin's response has been based on political cheap shots, public relations stunts, and an inability to make fact-based decisions."

New York state lawmakers, Republicans and Democrats, have now called for an independent investigation of Cuomo's policy.

Richard Gottfried, chair of the New York Assembly Health Committee, said he has asked Attorney General Letitia James to bring in outside counsel to examine not just the March 25 directive, but the state's long-term oversight, funding and standards for nursing homes.

In an interview, he said that the state has done "nothing about the chronic problem of understaffing in nursing homes," that it has kept "Medicaid funding for nursing homes sparse" and that state inspection teams are "seriously understaffed and have a track record of very lax enforcement."

"All of that leads to inadequate care, a culture that tolerates poor care and does not properly support the nursing homes that are trying to provide quality care," Gottfried said.

The Cuomo administration fired back at Gottfried.

"As long-time chair of the Assembly health committee and with 30 years in the state legislature, nobody in Albany has been in a better position than Assemblyman Gottfried to affect real change in the long-term health care system," Azzopardi said in his statement. "We welcome him to the discussion and applaud him for speaking out about the chronic problems in nursing homes under his three decades of leadership."

Five days after the Cuomo administration reversed its policy on discharging COVID-19 patients to nursing homes, a 76-year-old woman died of COVID-19 at Samaritan Hospital after having been infected at Diamond Hill.

McLaughlin ran into her son shortly after her death. He had few words of comfort.

The son said he'd last seen his mother on Feb. 25, but then all visitors had been barred. He said on the phone one day in April he noticed a change in her voice. She was soon hospitalized and spent three weeks in an intensive care unit before dying.

Now he wishes he'd brought her to live with him before she got COVID-19.

"I feel like I could have brought her home if they'd let me," said the son, who did not want to be identified by name because he is exploring legal action against the home.

Diamond Hill did not respond to questions about the case.

The woman had held a variety of jobs across 30 years of her working life — for Montgomery Ward, for the state motor vehicle department, for a local bowling center. She'd gone into Diamond Hill for what was supposed to be a brief stint of rehab.

"I thought I was putting her someplace safe," her son said. "Instead, I put her 6 feet under."

Mollie Simon and Benjamin Hardy contributed reporting.

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