Gov. Andrew Cuomo, right, and state Department of Health Commissioner Dr. Howard Zucker hold a coronavirus news briefing Jan. 5 to discuss the COVID-19 vaccine rollout. Courtesy of Gov. Andrew M. Cuomo’s office

ALBANY — The state Health Department will allow visitation in congregate facilities using rapid COVID-19 testing, officials said Friday, before department Commissioner Dr. Howard Zucker defended a controversial order at the heart of a six-month battle for coronavirus fatality data in New York nursing homes.

The Health Department will release visitation guidelines Monday in accordance with U.S. Center for Medicare and Medicaid Services and Centers for Disease Control and Prevention guidance. Officials did not announce what date visitation will begin.

Visitors must take a rapid COVID test that the Health Department will provide to the state’s 613 congregate care facilities, including nursing homes. Rapid tests will be provided at no cost to adult care centers that have been COVID-free for at least 14 days.

“One of the most devastating aspects of this virus has been how it separated families from their loved ones,” Gov. Andrew Cuomo said Friday. “Thanks to the dedication of New Yorkers, we’re now at a point where we can begin to resume nursing home visitations under strict guidelines to protect the health and safety of residents.”

The state will resume in-person visits as New York’s average percentage of new COVID-19 infections has declined for 42 days, down to 3.6% from a peak of 7.94% on Jan. 4.

Visitation in adult care facilities was first suspended at the start of the pandemic last March. Visitation is permitted in state congregate facilities that have not had a COVID-19 case for at least 14 days, according to Sept. 15 guidance from the Health Department.

The state guidance is in accordance with CMS and CDC guidelines.

The state Coronavirus Task Force will open rapid testing sites across the state in the coming weeks. Eleven opened in the New York City area Friday. Rapid tests are the key to reopening industries that have remained closed throughout the pandemic.

“The rapid test is very quick, it’s not intrusive,” Cuomo said. “I believe reopening (of the state economy) is going to be accelerated by testing, and we’ve been moving down that path. If a person is tested and is negative, then you can reopen.”

Rapid tests at state sites will cost less than $30 and take 30 minutes or fewer. Rapid tests are approved by the U.S. Food and Drug Administration.

“It will accelerate our economic reopening prior to reaching herd immunity where everyone has a vaccine,” Cuomo said. 

The nation will have enough vaccine supply to achieve herd immunity, or vaccinating between 70% and 90% of the population, around July, federal officials announced last week. 

Zucker on Friday defended the Health Department’s March 25 memo that allowed virus-positive nursing home patients to return to their respective facilities to recover. The order intended to free up hospital beds for critically ill virus patients at the height of the pandemic when some expert models projected a high of 140,000 New Yorkers hospitalized and 37,000 in intensive care due to COVID-19.

“So what if — what if we hadn’t done March 25th? Hospital beds that ended up saving lives would not have been available because they would have been occupied by someone who could have been discharged,” Zucker said. “You make the decisions based on the information that you have at the time. We made the right public health decision at the time, and faced with the same facts we would make the same decisions again.”

More than 15,000 New York nursing home residents have died from COVID-19 complications since the pandemic began, including those outside the facility in hospitals or hospice and presumed virus fatalities when testing was scarce at the start of the pandemic. The state reported just under 9,000 coronavirus deaths of nursing home residents at the end of January.

The governor on Friday again denied that the state reported inaccurate COVID-19 nursing home death counts.

“It is a lie to say any numbers were inaccurate — that is a lie,” Cuomo said. “(The) total deaths were always reported for nursing homes and hospitals.”

Zucker and Cuomo’s administration have defended the March 25 memo since last summer, saying it was in line with federal CMS and CDC guidance at the time.

Many lawmakers, advocates and families of nursing home residents have increased demands for state Attorney General Letitia James or another special prosecutor to review the order, which was superseded May 2, and determine if it contributed to thousands of virus fatalities in congregate facilities. 

An analysis of the March 25 order by The Empire Center released Friday concluded the directive correlates to an increase of 0.09 additional resident deaths, with a margin of error of plus or minus 0.05.

Admitting any number of new COVID-positive patients into a facility reflected an average of 4.2 additional deaths per facility, according to the report.

Cuomo’s administration released additional nursing home data last week following the Empire Center, a right-leaning think tank, won its September lawsuit after the Health Department delayed a Freedom of Information Law request for the public data three times. 

The Empire Center’s analysis also concludes the March 25 memo was not the sole or primary cause of the state’s nursing home death toll.

“At the same time, the findings contradict a central conclusion of the Health Department’s July 6 report on coronavirus in nursing homes, which said, among other things: ‘Admission policies were not a significant factor in nursing home fatalities’ and ‘The data do not show a consistent relationship between admissions and increased mortality,’” according to a Friday statement from the Empire Center.

Zucker publicly addressed the ongoing controversy over the state’s delayed release of COVID-19 nursing home data during Friday’s briefing.

Nursing homes that could not follow the state’s COVID-19 regulations, including providing sufficient personal protective equipment, testing or space to safely quarantine virus-positive residents, were mandated to notify  under state law.

“As always, if they could not accept a patient, they should not commit the patient,” Zucker said. “It is against the law to take someone that they cannot care for. We simply said (that) you cannot deny admission based on COVID status.”

The governor on Friday reasserted that lawmakers were told state executives were pausing responding to the Senate and Assembly requests for the complete data last August after Zucker failed to release the numbers at an Aug. 3 legislative hearing.

For the last two weeks, Cuomo and his top aides have said they paused gathering data for state lawmakers to focus on an Aug. 26, 2020, U.S. Department of Justice inquiry requesting the numbers of virus deaths in adult care facilities, or about 26 locations of the state’s 613.

“They were told and they knew,” Cuomo said, “and we gave DOJ precedence, yes, because that’s how it works. Federal DOJ gets precedence. Well, some were offended that they weren’t given precedence. I understand they are offended. ... The federal DOJ takes precedence over a state legislator. That’s true. They find it offensive. I’m sorry, but that is true.”

Cuomo said his administration was not aggressive enough in fighting disinformation surrounding the state’s nursing home deaths.

An increasing number of Democrats have publicly called for an investigation into Cuomo’s administration and COVID policies in congregate facilities after James’ Jan. 28 report that concluded the state underreported its nursing home fatalities by as much as half.

Republicans in the Assembly Minority Conference announced plans Thursday to introduce a measure to form an Impeachment Commission to gather facts about the state’s handling of COVID-19 in nursing homes and the release of public fatality data late next week. Cuomo did not discuss or respond to the proposal Friday.

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