.@cxmacdonald spots a flaw in the Abramowitz brief defending Cuomo's nursing home policies -- a flaw that also blows up one of Cuomo's key talking points about the 3/25 order requiring homes to admit COVID-positive patients. [thread]
The Abramowitz brief, as posted today by the @NYDailyNews, cites a long-standing regulation providing that a nursing home "shall ... accept and retain only those nursing home residents for whom it can provide adequate care." ... nydailynews.com/opinion/ny-edi…
The argument is that, in spite of the strongly worded 3/25 memo, homes always had the option -- and even the obligation -- to turn away COVID-positive patients if they couldn't handle them safely. ...
Here's the problem: The regulation in question -- 10 NYCRR 415.26(i)(1)(ii)] -- was one of many that Cuomo had suspended by executive order on March 18, a week before the March 25 directive was issued. See E.O. 202.5, archived here: govjustice.org/covid-executiv…
Cuomo himself has made the same argument many times since the 3/25 directive became a hot topic. Here is an example taken from his book, as quoted in my report on the issue for the @empirecenter: empirecenter.org/publications/l… 
Abramowitz cites the regulation in his brief without explaining that Cuomo had suspended it a week earlier. As far as I can tell, Cuomo never mentioned that, either. ...
The idea that a boilerplate regulation would supersede the 3/25 order was always dubious. It was issued in the thick of a pandemic by a health commissioner exercising emergency powers. If nursing homes were supposed to exercise discretion, the order should have said so. ...
Now it turns out that the boilerplate regulation was not even in effect at the time -- as Cuomo should have known all along, because he's the one who suspended it.
Cuomo unsuspended the pre-existing regulation (10 NYCRR 415.26(i)) on May 7, 2020.
On May 10, he issued an order barring hospitals from sending COVID-positive patients to nursing homes, effectively superseding the 3/25 directive. govjustice.org/covid-executiv…
On May 10, he issued an order barring hospitals from sending COVID-positive patients to nursing homes, effectively superseding the 3/25 directive. govjustice.org/covid-executiv…
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