The flashpoint in a legislative investigation of deaths related to COVID-19 in Pennsylvania nursing homes centers on just one word: “must.”
Republican lawmakers claim Gov. Tom Wolf put lives at risk last year when his Health Department issued guidance saying nursing homes “must” admit stable COVID 19 patients.
GOP lawmakers say their interest is not in assigning blame, but in fixing any laws or regulations to prevent unnecessary deaths in long-term care facilities should another pandemic occur.
“We need to know what went wrong,” state Rep. Natalie Mihalek, R-Allegheny, said at a recent news conference where a key Republican, Majority Leader Kerry Benninghoff, referred his request for an investigation to the House Government Oversight Committee.
Asked about the GOP criticisms, a Department of Health spokesman referred to “significant misinformation and confusion” on this issue, charging that it’s been used politically by Wolf’s opponents.
On March 13, 2020, early in the pandemic, the federal government issued guidance saying nursing homes “can accept” stable COVID-19 patients but did not have to do so. That guidance was issued by the Centers for Medicare and Medicaid Services, which sets the standards for nursing home care across the county.
As the hands-on inspector of nursing homes in Pennsylvania, the Department of Health followed up on the CMS guidance in a March 18 message to home administrators. That guidance changed the CMS language from “can accept” patients who had COVID-19 to “must.”
Wolf administration officials say it’s not appropriate to focus solely on the March 18 guidance, noting that several additional memos sent to nursing homes echoed the voluntary language issued by CMS. About 12,900 people with COVID-19 have died in Pennsylvania nursing homes since the pandemic began. That represents more than half of the 25,150 total deaths in Pennsylvania from COVID-19, state figures show.
Thus far, no investigation has connected any deaths or COVID-19 outbreaks at nursing homes to admitting COVID-19 patients, many of whom lived at the facilities and were returning after being treated for the virus at a hospital.
But Republicans say they aren’t satisfied with the Wolf administration’s defense of its actions.
“Pennsylvanians and their families are left only with excuses and deflection from an administration that has been anything but transparent,” Benninghoff said.
“We want answers for the people who lost loved ones in our nursing homes,” said Rep. Clint Owlett, R-Tioga County.
Benninghoff’s “referral for investigation,” delivered last month, asks the committee to review any guidance or public information provided on nursing home referrals by three state agencies, the Health, Aging, and Human Services departments. The state’s death figures from nursing homes — at times inconsistent and incomplete during the pandemic — are also at issue.
“From our perspective it (the March 18, 2020 guidance) is not contrary” to the federal guidance, said Barry Ciccocioppo, spokesman for the Department of Health. It was intended to clarify the federal directive, he said.
“To put the blame on a word in one document is ludicrous,” Ciccocioppo said. “People get hung up on that word and that’s for political purposes.”
“Our state guidance might have been clearer, but it was not different from the federal guidance,” Acting Health Secretary Alison Beam testified before the House Appropriations Committee in February.
The CMS guidance is “very different” from the Department of Health’s memo to nursing homes, Mihalek, a Republican from the Pittsburgh suburbs, said at that hearing.
“If you are following the federal guideline, no new order would have been needed,” Mihalek said.
There’s no question the federal guidance was amended by the Pennsylvania Health Department, Mihalek said. She wanted agency officials attending the hearing to address whether it was a mistake.
Beam would not acknowledge a mistake was made.
“The fact you were avoiding the answers makes it clear there was a mistake,” House Appropriations Chairman Stan Saylor, R-York County, told Beam.
Ciccocioppo, asked about the Republican criticisms last week, said additional guidance issued by the state reiterated the state was not making it mandatory that nursing homes admit CO-VID 19 patients. The state’s guidances build upon one another, he said.
“One section of the DOH guidance has been extracted and represented without context,” Ciccocioppo said.
But Adam Marles, president and CEO of LeadingAge PA, a trade association representing nonprofit nursing home providers, said the state’s March 18, 2020, order was “bad policy” and “confusing” for his members.
“We reached out to DOH for clarification,” Marles said, and only after asking for more information was his group assured that if homes weren’t equipped to handle COVID-19 patients, they were not required to accept them.
“To the best of my knowledge, no one was forced by DOH to do it,” he said.
What did Wolf know?
Wolf, speaking at a March 3 news conference, said he believed the Department of Health “was just following what the federal government was telling us to do.”
Questioned at one point that day about the differences between the federal and state guidelines, Wolf told Harrisburg’s ABC 27, “I am not sure. I just don’t know.”
Those comments from the governor were referenced in the document from Benninghoff requesting an investigation.
The oversight panel, created last session to take deep dives on issues such as this one, has subpoena power. It is controlled by Republicans, but Democrats signed on to support the nursing home investigation, saying a bipartisan probe is preferable to further politicizing the matter. Its members were trained in working across the aisle, said Rep. Seth Grove, R-York, who was instrumental in creating the committee with House Speaker Bryan Cutler, R-Lancaster.
In an email, Lyndsay Kensinger, Wolf’s press secretary, said, “There was never an order associated with bringing residents back to nursing homes after recovering from covid in a hospital.”
It was critical that facilities have proper precautions in place, such as those to control infections, she said.
Owlett, the Republican from the state’s Northern Tier, said at the press conference last month he believed Wolf was “trying to do what was best.”
Hindsight is 20/20
At the time the federal and state governments issued their guidance on COVID-19 patients being admitted to nursing homes, public health officials did not know what to expect from the pandemic.
“We wanted to make sure our hospitals were not overrun,” Beam said, stressing that officials were keenly focused on preparing for the worst.
Officials across the country were fearful of a shortage of ventilators, N95 face masks and ICU beds — fears made more palpable in news coverage from countries like Italy, where hospitals could not keep up with the numbers of COVID-19 patients.
But did the state fail to update its guidance to nursing homes as the pandemic entered its second and third months? At the same time officials were focused on protecting hospitals, state figures showed more deaths were occurring in nursing homes. By May 2020, almost 70% of the state’s CO-VID 19 deaths had occurred in nursing homes, ex-House Speaker Mike Turzai, R-Allegheny, noted last May.
Guidance and orders issued by government agencies are not interchangeable, Ciccocioppo said. The Quality, Safety and Oversight memorandum issued by CMS on March 13, 2020, was mandatory. Pennsylvania’s subsequent guidance was intended to clarify it, he said.
But industry representatives said the March 18 guidance from the state left them with questions.
“Put yourself in the shoes of an administrator or frontline caregiver,” said Zach Shamberg, president and CEO of Pennsylvania Health Care Association. “Ask any nursing home what happens when a guidance is reviewed and not followed.”
Home administrators would believe they had to follow it, Shamberg said.
Ciccocioppo said nursing home officials are accustomed to looking at all the guidance documents issued by the state to determine how to react to specific issues.
But Marles said, “When the department puts out a guidance, providers listen.”
A political issue
Benninghoff, the House GOP leader, pledged a fair and thorough investigation of the state’s nursing home deaths.
The probe comes after other Republican legislators have cited the deaths as evidence of failed leadership from Wolf and his administration. Rep. Daryl Metcalfe, R-Butler County, made the nursing home deaths the subject of a longshot impeachment resolution he introduced in February.
Metcalfe wrote, “Although Governor Wolf had ample notice that residents of nursing homes and longterm care facilities were at severe risk of contracting and dying from COVID-19, Governor Wolf failed to direct the Department of Health to develop and implement a comprehensive plan to protect them.”
As some Republicans rush to politicize the issue, the state’s top health official continues to defend her agency’s handling of nursing homes.
“We stand by the decision at the time to issue several pieces of guidance to nursing homes at the start of the pandemic to protect residents and staff and to avoid overwhelming hospitals as was happening around the world,” Acting Health Secretary Beam wrote in an email. “We followed federal direction and first provided guidance on the necessary infection control measures that nursing homes needed to take before they accept any residents. Some nursing homes followed that guidance more closely than others.”