It’s not often Republicans and Democrats can both be described with the old children’s saw “Liar, liar, pants on fire.”

That’s what’s happening when it comes to the most-repeated claims regarding New York’s handling of COVID-19 in state nursing homes.

State Republicans often refer to a March 25 order from Dr. Howard Zucker, state health commissioner, when talking about Gov. Andrew Cuomo’s COVID-19 failures. Cuomo, meanwhile, tries to lay the blame for the March 25 order at the feet of then-President Donald Trump and the Centers for Disease Control.

The problem is both arguments are mostly false, according to Politifact, a fact-checking arm of the Poynter Institute, yet they still show up regularly as the state Senate and Assembly pass legislation that could drastically change the way nursing homes operate for decades into the future.

FOLLOWING STATE GUIDANCE

Cuomo has said often in the past several months that the state was simply following federal CDC guidance in sending COVID patients into nursing homes. Politifact rated the statement as mostly false, largely because the state’s March 25 order left nursing home operators feeling as if they had no choice but to accept residents who were either known to be COVID patients or suspected to be despite differing CDC guidance.

“That’s because the March 25 memo did not say anything about making sure that a nursing home can care for a patient before making an admission decision, and said they ‘must comply with the expedited receipt of residents,'” the Politifact analysis states. “In the month following the memo, nursing homes pleaded for relief from the order.”

Adding further heat to the fire is the insistence by Cuomo and Zucker that the way New York reported nursing home deaths is standard practice and the withholding of nursing home death information.

Priya Chidambaram, a senior policy analyst at the Kaiser Family Foundation said on the organization’s website that federal rules for reporting COVID nursing home deaths require that states include off-site deaths in hospitals.

“New York’s decision to pull out the hospital-based deaths was not based on standard practice,” she said.

THE NURSING HOME ORDER

Republicans’ continued reliance on the March 25 order to bolster their claims is similarly not supported by fact.

The Empire Center for Public Policy has analyzed data Zucker and Cuomo sought to keep from the public to find the March 25 directive was associated with 4.2 additional deaths per facility, on average. The Empire Center analysis refuted a July report by the state Health Department that the state’s March 25 order wasn’t a significant factor in nursing home fatalities and that data didn’t show a relationship between admission and increased mortality. Even the Empire Center would not say the March 25 order was the biggest cause of New York’s COVID-19 nursing home deaths.

“The data indicate that the March 25 memo was not the sole or primary cause of the heavy death toll in nursing homes, which stood at approximately 13,200 as of early this month,” the center wrote in a mid-February blog post.

Politifact rated as false the argument that the March 25 order caused the majority of New York’s nursing home deaths. That hasn’t stopped Republicans from returning to the memo often during legislative debate and news releases.

WHY DOES THIS MATTER?

It’s unlikely to generate headlines, but Assemblyman Ron Kim, D-New York City, may have stumbled upon a key issue for Republicans and Democrats to remember as they debate nursing home legislation.

Kim was asked Thursday on the Assembly floor by Assemblyman Andrew Goodell, R-Jamestown, how proposed legislation mandating nursing homes create infectious control plans and quality control plans keeps nursing homes from violating those plans when ordered to do so by the state Health Department. Goodell argued placing COVID-positive patients in nursing homes violated the nursing homes’ own plans.

“I believe during this pandemic there was a disconnect in some of the executive orders that were not aligned with the quality of reviews and standards,” Kim said. “There were clear mistakes that were made and we’re trying to rectify that now through various legislation. We’re hoping this piece of legislation, along with many others we’ll be putting forward, can address some of your concerns as we move forward.”

Goodell noted a proposed state requirement for nursing homes to create additional plans does little good if the state Health Department can force nursing homes to violate those plans. While debating another piece of legislation on Thursday, Goodell called for an investigation into how the Health Department made its decisions from the earliest days of the pandemic all the way through the decisions to withhold information from the legislature and the public.

“I find it troubling that this is now one of several bills that we have been asked to enact that seems to conflict with the actual policy and practice of our own state Health Department,” Goodell said. “In the past I always looked to the state Health Department in encouraging an increase in safety and facilitating thoughtful, compassionate, safe care. … We step forward and say make sure you’re talking about infectious control at the same time that our own Health Department ordered thousands of COVID active patients into these nursing homes — many of which would have violated the standards of the nursing home itself.”

Republicans who are hitting Cuomo over the March 25 order and withholding nursing home death data are prompting Democrats — particularly those upset with Cuomo’s withholding of information — to move quickly to show they, too, care about what happened in nursing homes over the past year. The political rancor is potentially leading both parties to miss bigger issues that could affect nursing homes for the foreseeable future.

The state Senate has already passed several nursing home bills that are now being taken up in the state Assembly. One of those bills is S.4336, which directs the state health commissioner to establish a direct patient care ratio reporting and rebate requirement for nursing homes. It was passed in a party line vote by the state Senate. The legislation mandates 70% of a nursing home’s revenue be spent on patient care, and 40% of that 70% is further required to be spent directly on employee wages. For the past decade New York State has had a similar system for health insurers called the Medical Loss Ratio that requires regulated health insurers to provide a minimum amount of revenues to pay for actual care. Sen. Gustavo Rivera, D-Bronx, said roughly half of the state’s nursing homes would meet the patient care ratio already.

Another piece of legislation passed Thursday in the state Assembly would prevent creation of new for-profit nursing homes, prevent for-profit nursing home owners from purchasing any additional nursing homes and keep them from adding beds to their existing facilities.

Democrats rely on Attorney General Letitia James’ Jan. 28 report on nursing homes which found a correlation between high mortality rates and lower staffing levels as well as higher mortality among for-profit nursing homes. James’ analysis was done without the benefit of data the Empire Center forced the state to release through a court-enforced freedom of information request.

“The updated data shows there is no basis to believe that regulating staffing levels or for-profit ownership would have protected residents from the coronavirus pandemic,” said Bill Hammond, senior fellow for health policy at the Empire Center. “We should use the clarity provided by the slow drip of new information on these nursing home infections and deaths to drive policy–and avoid making the same mistakes again.”