HUDSON VALLEY, N.Y. - State legislators may rein in Gov. Andrew Cuomo’s executive powers in the wake of a report that determined his administration “underreported” COVID-19-related nursing-home deaths by approximately 50 percent.
Data obtained from surveying 62 nursing homes, a roughly 10 percent sample of total facilities across the state, suggests that “many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes,” which was not reflected in the state’s accounting of COVID-19 deaths, the attorney general’s office said last month.
New York State, which lost a months-long legal battle with the Empire Center, has since been required by a State Supreme Court judge to release data that includes nursing-home residents who died in hospitals. On Feb. 10, the Department of Health provided the dates and locations of more 14,000 deaths involving long-term care residents, including almost 5,000 that occurred in hospitals.
For example, at a nursing home in Yorktown Heights, zero in-facility patient deaths were reported throughout the pandemic. However, on Feb. 10, the state reported that six residents died outside of the facility between May and January.
But to Dr. Howard Zucker, New York’s health commissioner, the AG’s report was not a revelation of conspiracy. If anything, he said, the report proved there was “no undercount” in the total number of deaths. The health department has always “publicly reported the number of fatalities within hospitals irrespective of the residence of the patient,” he said in a Jan. 28 statement.
The attorney general’s report “is only referring to the count of people who were in nursing homes but transferred to hospitals and later died,” Zucker continued. “That does not in any way change the total count of deaths but is instead a question of allocating the number of deaths between hospitals and nursing homes.”
The scrutiny over the state’s handling of nursing homes is nothing new. On March 25, the state Department of Health controversially mandated that nursing homes must not deny readmission to residents “based on a confirmed or suspected diagnosis of COVID-19.” A new policy was announced on May 10, saying a hospital cannot discharge a patient to a nursing home unless they test negative for the virus.
In a private virtual meeting earlier this month with state legislators, Melissa DeRosa, a top aide to Cuomo, said the administration “froze” with regard to data requests because of concerns about a potential federal investigation. Then-President Donald Trump pounced on the controversial March 25 mandate and had been using the topic as a “political football,” DeRosa said, and the state was concerned the data “would be used against us.”
State Sen. Peter Harckham (D-South Salem), in an interview with Mahopac News, said the governor’s administration was not acting “in good faith” in its reporting of the data.
“I think by the governor’s own words, they didn’t provide enough data or transparency,” Harckham said.
Citing both the AG’s report and DeRosa’s comments, Assemblyman Kevin Byrne (R-Mahopac) said there was “absolutely” an attempt by the governor’s office to mislead the public on the number of nursing-home deaths. He said Cuomo prioritized his political image and fear of federal prosecution over the health and safety of New Yorkers.
“No one ever said the total number of deaths was inaccurate, and that’s not the question here,” Byrne added.
For months, Byrne and other state legislators requested the figures to help guide decision-making. Those who asked questions or probed further, he said, were “publicly ridiculed and attacked” by the governor’s administration.
“That information was withheld,” Byrne said. “We asked for it. We knew that it was missing information—that they weren’t including the hospital deaths from nursing-home residents.”
Both houses of the state legislature are discussing this week potentially reining in Cuomo’s executive powers, which were bestowed upon the governor early on in the pandemic. But, Harckham said, legislators must be “careful what they wish for,” as stripping executive powers in a pandemic could make it more difficult to take action. At the very least, he said, “the legislature needs to have a seat at the table so we’re not hearing about things after the fact.”
If the legislature takes no action, the law that granted Cuomo’s executive powers will expire on April 30.
“We have a choice,” said Assemblyman Chris Burdick (D-Bedford), “whether to just let it lapse, or do we take action before then? There’s no question in my mind that we need to take a hard look at that.”
Last week, U.S. Sen. Kirsten Gillibrand (D-New York) confirmed that there is an ongoing federal investigation into Cuomo’s handling of nursing homes during the pandemic. The state senate is also launching an investigation.
Byrne is among the state legislators also calling for a legislative impeachment commission “to investigate and recommend potential counts of impeachment against the governor.”
Adding fuel to the fire, Assemblyman Ron Kim (D-Brooklyn) said last week that he received a “threatening” phone call from Cuomo after speaking out against his administration’s handling of nursing homes. Cuomo has denied Kim’s version of events, but Byrne said he “believes” his colleague.
Harckham, who served in Cuomo’s administration from 2015 to 2018, was sworn in by the governor when he was elected to the state senate. He said that he has never had a conversation of that nature with Cuomo.
“I spoke with him [last] week,” Harckham said. “We had a very good conversation on a number of issues. I read the same reports. That’s just not been my experience. That doesn’t mean we always agree. We certainly don’t on policy. But they’ve always been professional phone calls.”
This week, the senate was expected to pass a package of bills aimed at improving situations in nursing homes. Harckham said he’s particularly concerned about staffing levels.
“That’s the kind of positive action we need to be taking. Not be part of the bomb throwing,” Harckham said. “Now is the time to focus on the work at hand and not contribute to the toxic atmosphere.”