Source: Jim Dillon, M.D.

Soon after Governor Andrew Cuomo mandated that nursing homes in New York accept patients with COVID, Michigan Governor Gretchen Whitmer on April 15, 2020, followed suit with a very similar edict that had very similar results.  Michigan’s Auditor General recently reported that the death toll for long-term care facilities (nursing homes) is 30% higher than the State had previously admitted.

I followed the progress of this order through a colleague whose clinical work involved consultations at nursing homes in southeast Michigan.  (He wishes to remain anonymous lest his observations jeopardize his employment) He reported that facilities promptly responded to the order and the residents promptly started to die.

An investigation by Michigan’s Office of the Auditor General concluded that the Whitmer administration had undercounted the death toll for COVID-19 in long-term care facilities by about 30%.  The administration predictably disputed the conclusion, claiming that differences in methodology, especially the state’s exclusion of facilities not subject to COVID reporting requirements, accounted for much of the discrepancy.  But dead is dead, and the only relevant question is whether the governor’s order played a role in the new deaths identified by the auditor.  The answer is likely “Yes.”

Provision I.2 of Whitmer’s executive order 2020-50 required LTC’s to readmit residents recently hospitalized for COVID-19 infection:

A long-term care facility must not prohibit admission or readmission of a resident based on COVID-19 testing requirements or results in a manner that is inconsistent with relevant guidance issued by the Department of Health and Human Services (“DHHS”).

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Privately, I had anticipated this event as soon as I learned of the similar order issued by Andrew Cuomo for nursing homes in New York.  Having been in state government under another administration, I thought it likely that the response to COVID would emphasize the individual right for a person with COVID to return to his or her residence over the rights of the larger number of residents hoping to remain free of infection.  But if anything, that was likely just a facilitating climate of opinion.  The true motivation for the order, like that of the Cuomo administration in New York, probably was a practical one, to distribute the growing COVID population among a limited number of available facilities. The order protected hospitals from reaching census ceilings that LTC rejection of returning residents might have caused.  However, the price paid — widespread infections and thousands of unnecessary deaths — was far too high for the administrative benefits obtained.

Section III.3 of the executive order required nursing homes with a census below 80% to create special units for managing COVID cases.

A nursing home with a census below 80% must create a unit dedicated to the care of COVID-19-affected residents (“dedicated unit”) and must provide appropriate PPE, as available, to direct-care employees who staff the dedicated unit.

These dedicated COVID units appeared overnight.  Nursing homes — especially the marginal ones with the least ability to manage an extraordinary infection and the least capacity to attract discerning referrals — were already scrambling for residents under the best of conditions.  Rerouting a substantial number of COVID cases, assuming there would be a place to send them, would further drop the census.  To remain viable, these nursing homes developed instant COVID units, which were nothing more than hallways inhabited by staff wearing masks and rooms dedicated to COVID patients.  Staff moved between dedicated units and COVID-free units, a predictable necessity given the limited number of staff, who themselves were contracting the virus and dying.  The arrangement ensured there would be a steady stream of virus into the clean units. These homes are technically unsophisticated medical establishments. There is no in-house medical staff to plan and implement the complex conditions and protocols needed to protect a vulnerable population from this unique pathogen. Thus, the dedicated COVID units were effectively a fiction created to satisfy the governor’s order, and anyone familiar with these facilities would have anticipated as much. The challenge was new, and the nursing staff tried to adopt best practices, but they were way over their heads.

In addition to the nursing homes, the governor’s mandate included Adult Foster Care (AFC) homes with twelve or fewer residents.  These facilities are intended to be like homes that mimick a family-like feeling for residents.  Like nursing facilities, the AFC homes house extremely vulnerable people, including the aged, mentally ill, and developmentally disabled, many of them suffering complicated medical problems.  I have not found data regarding either the incidence of COVID within these facilities or the frequency of transfers to regional hubs.  One would expect high rates of infection, hospitalization, and death based upon the design of AFC facilities, the medical comorbidities of residents, and complicating behavior problems in persons with mental illness and developmental disabilities.  A COVID case in such a home could easily infect every occupant in the course of a few days. These facilities, usually full or one bed away from full, have nothing to count as a dedicated unit other than a bedroom. Some alternative dispositions would be theoretically possible under the executive order, including alternate care facilities intended to accept overflow from hospitals at full census, and so-called regional hubs, twenty-one nursing homes, nine of which carry Medicare ratings below or much below average, for the temporary care of COVID-infected residents of LTC’s lacking dedicated COVID units of their own.

Long-term care residents numbering 8,061 died from COVID between March 2020 and July 2, 2021, up from the 5,675 previously acknowledged by the state.  Elizabeth Hertel, Director of the Department of Health and Human Services, thinks the report is potentially misleading.  She worries that “the work and integrity of long-term care facilities, local health departments, coroners, and other frontline workers who we rely on to report data” might be called into question.

In fact, it is the judgment of Whitmer and Hertel that is being called into question.