Coronavirus NJ: Secret tape recording, report 'flaws' bring nursing home review into question

New Jersey leads the nation in deaths per capita at nursing homes right now for many different reasons, but poor planning, communication and questionable policies likely exacerbated the misery for thousands of families,

Yet much of that concern over how the state prepared for and responded to the COVID-19 outbreak was excluded or glossed over in a half-million dollar report released this month that Gov. Phil Murphy, along with his health commissioner, called “exhaustive, in-depth” and “thorough."

That "rapid review," conducted by New York-based Manatt Health, set off internal strife, too.

Health officials secretly taped conversations of Health Commissioner Judith Persichilli venting about another Cabinet member influencing the governor's office, according to recordings obtained exclusively by the USA TODAY NETWORK Atlantic Group.

A growing group of anonymous health and human services employees, who have already written to lawmakers critiquing the state's response, plan to send another letter detailing the nursing home report's "flaws" and claiming it gave cover to the state. And the Legislature plans to investigate and fill in some of the gaps of the report.

For its flaws, the rapid review is still a valuable document that could serve as a roadmap for the state to revamp its oversight and a profit-driven industry where workers are low paid and staffs are thin. But it falls short in several critical areas, including a controversial directive issued by Health Commissioner Judith Persichilli prohibiting nursing homes from denying infected patients, according to health experts and lawmakers.

"They were soft on the Department of Health but at least their No. 1 recommendation was to say, 'Hey, you've got to do this better next time,'" said Dr. David Barile, founder and medical director of the Goals of Care Coalition of New Jersey, a group of health care providers and community organizations focused on end-of-life care.

More than 6,000 nursing home residents have died so far due to complications from COVID-19, accounting for about half of the total deaths reported by the state. It leads the country in the average per capita deaths and in the average of positive cases and deaths, according to the Centers for Medicare and Medicaid Services.

And New Jersey has had more veterans die in its Veterans Affairs care facilities than any other state — 104 as of Friday — but the consultants did not investigate those.

Barile, who met with the Manatt Health team, said he felt positive and "excited" about the report leading to safer nursing homes but thought it was "really lacking" in other end-of-life areas, such as palliative medicine and advanced-care planning. He sent a letter to Murphy expressing those concerns and their importance in an anticipated second wave.

"There were a lot of really miserable deaths that happened, there was a lot of trauma that happened, there was a lot of miscommunication that happened" at those other long-term care facilities, he said in an interview.

The lead authors of the report, Cindy Mann and Carol Raphael, acknowledged in a section on "limitations" that they focused primarily on nursing homes and "additional work may be done" to determine which recommendations can extend to other long-term care settings. They did not respond to an interview request or emailed questions about critiques of their work.

Manatt Health earned praise from some union and industry leaders and Democratic lawmakers for its recommendations to address what has widely been considered a disaster at nursing homes. But others would have liked to see more issues addressed that concern the state and long-term care operators.

In a letter to be sent to Senate leaders, who plan to form a bipartisan oversight committee to investigate states issues related to the COVID-19 crisis, a group of anonymous officials in the departments of health and human services detailed about a half-dozen "flaws" they have with the Manatt Health report.

One "glaringly obvious shortcoming" was the state's formula for allocating test kits and personal protective equipment, or PPE, they said.

The officials argued, as they did in a previous letter to lawmakers, that not distributing those supplies led to deaths at nursing homes and by not acknowledging that the report "is obscuring our leadership’s most important mistake through consultant-speak and high-level recommendations."

The consultants' minimal attention to a controversial directive from Persichilli to nursing homes is another overlooked area, the health officials said. That directive said no patients could be denied into nursing homes "solely based on a confirmed diagnosis of COVID-19" and facilities are "prohibited from requiring a hospitalized patient/resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission."

The directive has been regularly cited as a failure on the Health Department that doomed compromised nursing home residents, but Murphy said at a recent press briefing  that's "completely inaccurate."

Persichilli has strongly defended the directive, too, saying it mirrored guidance by the Centers for Disease Control and Prevention and that facilities were told, if "you cannot admit, let us know."

The Manatt Health report did not explicitly cite that directive, but said hospitals should not discharge patients to nursing homes unless the operators attest they can take them.

"Any honest look at the state’s response would have surfaced this egregious problem. This review did not," the health officials said in the letter.

Republican Sen. Steve Oroho, whose Sussex County district is home to the Andover Subacute & Rehab Center, where 17 bodies were found in a makeshift morgue, said his top concern with the consultants' report was its lack of attention to Persichilli's directive.

"There was absolutely no discussion whatsoever about that decision," Oroho said. "Everybody always wants to say let's forget the past and move forward, but when you made such a critical decision as that and it’s not even addressed, to me that’s suspect."

Sen. Joseph Vitale, the Democratic chairman of the Health, Human Services and Senior Citizens Committee, said in his understanding no facility was forced to accept infected patients. But that and many other aspects of the state's response will be investigated through legislative hearings, he said.

"It’s necessary to know if there were mistakes made. We have to know what those mistakes were in order to fix them. That’s what we will do," he said. "Those accusations that the department did a poor job in terms of communicating with the facilities — if that’s true, we need to know that and we need the testimony and we need the data and the facts."

The Manatt Health report, Vitale said, "is a little short on the observations into the administration's role in this," but it still contains a lot of valuable information that will be helpful to lawmakers. He would have liked to have seen "more meat on the bones with respect to payment structure."

The report did mention that nursing home staff earn low wages and often work multiple jobs, but Vitale said more detail would have been beneficial for lawmakers to help craft policy responses.

And there was no explicit mention in the report of re-examining how nursing homes get paid, which was an issue that arose two years ago when a virus killed 11 children at the Wanaque Center for Nursing and Rehabilitation. There is a "perverse incentive" to accept and keep patients even without the safe staffing and supplies to do so because the facilities are paid through Medicaid for resident occupancy, the health officials said in the letter.

Medicaid is administered through the Department of Human Services. The health officials repeated a claim made in a previous letter that Human Services Commissioner Carole Johnson interfered and tried to “get ahead of the long-term care problem" by pushing for Manatt Health to get the $500,000 contract, which had originally been $195,000 higher.

Johnson worked with Mann in the Obama administration but "did not work closely with her and does not have a personal relationship with her," spokesman Tom Hester said. She "does not know" Raphael, he said.

Hester added that Johnson "did not make the selection of the vendor," but an audio recording of Persichilli obtained by the Network suggests Johnson had significant influence on the governor's office and chief of staff George Helmy.

In the recording, taken by a health official, Persichilli said “Carole Johnson is behind most of this." She said Helmy told her that “Carole has this idea and this is what we want." Persichilli had suggested another firm, Health Dimensions, because "they know the work," according to the audio. But Helmy told her, “We’re going with the one Carole recommended.”

The administration denied the discussion happened and said the selection of Manatt was a collective decision made by senior administration officials and public health experts.

"This conversation did not take place between the Commissioner and the Chief of Staff," Donna Leusner, a spokeswoman for the Health Department, said in an email.

The Network knows the identity of four of the officials who wrote the letter but is not naming them because they fear retaliation by the administration. The administration has fired an assistant commissioner and, since mid-May, has interviewed more than 20 employees in the Health Department in an effort to root out leaks to the news media, the insiders said.

"Everybody is fearing for their jobs and their livelihoods. We have chosen to make our concerns public because we fear that, with an administration clearly prioritizing the reputations of the individuals on top, especially the Commissioners of Health and Human Services, that there was no way for us to get our concerns heard," the officials said in the letter. "We have also chosen to do so anonymously, because we know what happens to people under this leadership who prioritize the mission above all else."

Dustin Racioppi is a reporter in the New Jersey Statehouse.

Email:racioppi@northjersey.com Twitter:@dracioppi