New Jersey almost required stricter infection-control rules. But then it backed off.

A medical professional wearing gear tests an elderly patient for the coronavirus | AP

Lawmakers wanted more oversight after 11 children died. State officials said they couldn’t do it.

TRENTON — New Jersey officials swore it would never happen again.

Almost a year after a 2018 adenovirus outbreak killed 11 children at a long-term care facility in northern New Jersey, Gov. Phil Murphy signed legislation requiring every such facility in the state to develop outbreak response plans to prevent future tragedies.

There was just one catch: Only a handful of the roughly 670 facilities would have to run their plans by the state Department of Health. The rest were on the honor system.

Six sources with direct knowledge of the bill’s drafting in 2019 say the state Health Department — worried about its limited resources — objected to a requirement that all of the plans be submitted for state vetting. Lawmakers reworked the legislation to limit the mandate to less than two dozen sites.

Now, 11 months after the bill was sent to Murphy’s desk, nearly 4,900 deaths have been linked to coronavirus cases at 500-plus facilities across New Jersey — more than half of all the fatalities in the state and one of the worst outbreaks in the nation.

More are dying every day, and the governor on Thursday ordered 120 members of the New Jersey National Guard to deploy at the state’s long-term care facilities, filling a need for non-clinical workers.

The rapid spread of the virus in these facilities means Murphy and other state and elected officials will soon face difficult questions about their failure to address the deficiencies revealed by last year’s outbreak at the Wanaque Center for Nursing and Rehabilitation, where the 11 children died.

Multiple sources — including key lawmakers — said New Jersey’s investment in its Health Department failed to fully account for a sprawling long-term care industry that’s now at the epicenter of a global health crisis.

Some say last year’s outbreak at the Wanaque facility was a warning ignored.

“Wanaque is an example of a failure in a system that wasn’t able to make sure the mechanisms that needed to be in place were there,” said Milly Silva, a former candidate for lieutenant governor and a top leader in 1199SEIU, a union whose members include nursing home workers. “Now we’re watching the example of Wanaque magnify to a level of scale that no one imagined.”

The legislation Murphy signed last year didn’t require the state’s 21 long-term care facilities with ventilators to submit their plans to the department until mid-February, just weeks before New Jersey recorded its first coronavirus case on March 4. Even if the department had collected plans from every facility in the state, it’s unlikely it would have made any immediate difference in its fight against a once-in-a-century pandemic that’s devastated vulnerable long-term care populations across the U.S.

However, the Health Department’s objections to the bill’s original language clarified its concerns about the resources it had to oversee an industry that’s constantly under fire for allegations of sub-standard facilities and care.

“There was nothing nefarious about it,” Assemblyman Herb Conaway (D-Burlington), the legislation’s lead sponsor and head of Burlington County’s health department, said of the changes to the bill. “It was about balancing the demands on the regulated entity against the demands placed on the regulator.”

As Murphy has pointed out repeatedly over the last week, it’s ultimately up to the facilities to execute their plans.

„The inconsistent performance by operators in the long-term care facility space is extremely disappointing,“ Murphy said during his daily briefing on Friday. „That’s a diplomatic word. But there’s an unevenness and folks out there have lived this, everything from what they did within facilities to communications to loved ones to everything in between.“

The Murphy administration did not respond to requests for further comment.

Reports from many of the state’s long-term care facilities over the last month show they were woefully unequipped to deal with a pandemic of this magnitude.

Outbreaks at two state-run veterans homes have killed more than 100 people combined, and at one facility in northwest New Jersey, the number of deaths mounted so quickly that staff reportedly stacked bodies in a makeshift morgue.

At the Wanaque facility, which has since been sold and rechristened as the Phoenix Center for Rehabilitation and Pediatrics, the state Department of Health reported at least 45 Covid-19 cases as of Friday.

Certified nursing assistants who spoke with POLITICO on the condition of anonymity for fear of workplace reprisal said infection control plans at their facilities were largely pro forma and, as the pandemic intensified in New Jersey’s northern counties, administrators provided scant information about which residents were infected and how to deliver care.

Limited personal protective equipment forced facilities to rely on makeshift supplies. One certified nursing assistant said she had to use a patient-style gown for the entirety of double shifts, placing both her and the facility’s residents at risk.

The virus’ spread through the state placed even greater strain on a workforce many elected officials concede is underpaid and overworked. Staffing shortages mounted as more people got sick.

Administrators of the facilities echoed many of those concerns to the Health Department, particularly as it became clear outbreaks were inevitable.

Health Commissioner Judith Persichilli has issued 18 orders and guidance documents for the industry since the coronavirus pandemic landed in New Jersey in early March. Most of those were aimed at limiting the risk of exposure within nursing homes and other long-term care facilities, and instructed administrators to curtail visitation, improve screening of staff and visitors and mandate the use of masks and other personal protective equipment.

Even so, as a tidal wave of new Covid-19 patients strained hospitals beyond capacity in the state’s northern counties, pressure mounted on long-term care facilities to re-admit Covid-positive residents who’d been discharged from medical centers after receiving treatment.

Many operators were wary of admitting those patients, particularly given the limited availability of coronavirus tests. Testing in New Jersey has been limited almost exclusively to those exhibiting symptoms, and Murphy has been adamant the case totals presented at his daily briefings aren’t representative of the actual rate of infection.

On March 31, long-term care administrators sounded the alarm during a conference call with Persichilli and other Health Department officials after the commissioner issued a directive barring facilities from excluding patients because of a Covid-19 diagnosis.

An inability to properly screen new residents, coupled with the risk posed by asymptomatic carriers, would almost certainly lead to outbreaks, said participants on the call, a recording of which was obtained by POLITICO.

“Patients will die in nursing homes that otherwise would not have died if we’d kept them out by screening everybody,” one nursing home operator said during the call. “When you do that, you’re putting us all at risk.”

Persichilli sought to placate those fears by instructing administrators to notify the department if PPE shortages or building constraints prevented the proper segregation of patients and staff.

The state was working to source as much PPE as possible — 10.7 million pieces had been distributed across the industry as of last week — and there was hope volunteer health workers may be able to assist some of the facilities in need.

Persichilli also said community spread guaranteed some level of risk even if a facility was unable to take on Covid-positive residents. Many health care workers are employed at multiple facilities and, even if they were exclusive to one site, they could easily be exposed in a community setting.

“We understand there’s a hesitancy to accepting residents who have Covid-19 back to your facilities,” Persichilli said on the call. “I know that is extremely disruptive, not only to the residents, but the ways in which you’re used to working.”

In the six weeks after that directive took effect, the number of facilities reporting Covid-19 cases has climbed from 81 to 515. The number of reported deaths spiked from 52 as of March 31 to 4,855.

Over the same period, Persichilli and other Murphy administration officials also began to express increasing alarm over the number of facilities that couldn’t stop Covid-19 from spreading among residents and staff.

In early April, one week after issuing her directive, Persichilli rolled out a plan to move residents away from facilities that were unable to cohort patients. By the end of that week, she said that plan was proving difficult to execute.

On April 13, the Health Department issued a separate order curtailing admissions to all New Jersey nursing homes and assisted living facilities unable to effectively cohort residents, provide adequate staffing and comply with applicable CDC guidelines. By April 15, the Health Department was reporting more than 120 facilities would halt new admissions.

As deaths continued to mount, the department began deploying survey teams to get a stronger sense of each facility’s physical plant and infection control protocol.

As of last week, around 60 facilities had been surveyed for infection control, PPE and staffing levels. Four had received notice they should develop a plan of correction, including contracting with an infection specialist.

“I don’t think anyone prepared us for the transmissibility of Covid-19,” Persichilli said at a press conference earlier last week. “Early on in this outbreak, when we realized that a whole family was stricken from a family gathering of 25, we realized we were dealing with something a lot more prevalent and virulent than we had expected. But at that point, it was already in our facilities.”

Lawmakers on both sides of the aisle say more needs to be done to provide state and local health departments with resources to combat future pandemics.

State Sen. Joe Vitale, a Democrat who chairs the Senate health committee, said in an interview that he was working with legislative staff to craft a bill that would require every facility to submit an outbreak response plan to the Health Department. Conaway, his counterpart in the Assembly, said “the perspectives of people who are making decisions are going to be leavened by the experience we’re going through now.”

On Wednesday, Murphy tapped two industry veterans — former Obama administration official Cindy Mann and Carol Raphael, the former CEO and president of the Visiting Nurse Service of New York and erstwhile AARP board chair — to work with the Health Department in developing better protocols to protect long-term care facility residents and staff through the remainder of the pandemic.

After weeks of residents complaining about facilities failing to notify families of outbreaks — an issue that also arose during the Wanaque fiasco — state Attorney General Gurbir Grewal widened his investigation of the state’s long-term care industry last week, setting up an online portal for residents to anonymously report misconduct.

“The industry does not have it within themselves to make the changes they need. If they had, they would have done it already,” Murphy said at a press briefing last week. “I want to be definitive and unambiguous on that. And change will be coming.”