What DeRosa told lawmakers had them aghast. Not only had Cuomo misled them; he had, in DeRosa’s telling, done it in order to keep relevant information hidden from U.S. investigators. If the latter were true, Cuomo administration officials could well be guilty of federal-obstruction and false-statements crimes. In other words, so shameful was their actual reason for covering up nursing-home deaths — namely, to make a wayward governor look like a fantasy hero — that Cuomo administration officials figured it was better to be seen as potentially felonious than to admit their crude political motivation.
As the New York Times reported on Thursday night, in the spring of 2020, DeRosa and other members of Cuomo’s inner circle, who have no public-health background, studiously purged the nursing-home death data from a report compiled by state health officials. The Justice Department was not eyeing them at the time. That happened months later, in August, when the feds began seeking information about the treatment of, and record-keeping about, COVID-stricken nursing-home residents by New York and three other states.
So what was going on at the time of the purge? Well — whaddya know! — it turns out that was just when Cuomo was quietly securing the state ethics approvals that would permit him to earn outside income from a book he’d decided to write. The book would inform the world about his unparalleled mastery of the COVID crisis — which, oddly enough, he contemplated as a work of nonfiction.
In its January 28 report, the attorney general’s office argued that low staffing levels in nursing homes was associated with higher death rates from the novel coronavirus. As evidence of that connection, the report presented a table (reproduced in Table 1 below) comparing death rates in nursing homes based on their star ratings for staffing from the U.S. Centers for Medicare & Medicaid Services (CMS). It showed that homes with the lowest staffing grade of one star had an aggregate COVID-19 mortality rate of 7.13 percent, compared to 4.94 percent for homes with a five-star rating.
However, that table was based on the limited data available in mid-November, which encompassed 6,645 deaths, only half the number that are documented now.
When that table is brought up to date, it shows no clear association between lower staffing grades and higher coronavirus mortality (see Table 2). Homes with a three-star staff rating showed the largest percentage of deaths, at 13.62, compared to 12.98 for two-star homes and 12.14 for one-star homes.
Aides to New York Governor Andrew Cuomo rewrote a July report by state health officials to conceal the number of nursing home residents who died from coronavirus in the state, according to reports.
Cuomo’s top aides worked to hide the fact that more than 9,000 nursing home residents had died from the virus in the state at the time, according to reports from the New York Times and the Wall Street Journal.
Cuomo’s aides clashed with the state’s health officials over the July report, which the Health Department worked on with the consulting firm McKinsey. The report included a chart comparing nursing home deaths in New York with other states, according to the New York Times, which showed that New York’s total of 9,250 deaths was far greater than that of the next highest state, New Jersey, which had 6,150 at that time.
The chart put the death toll at about 50 percent higher than the number the Cuomo administration had touted at the time.
Attorneys insist nursing home negligence cases are not designed to target nursing home employees and other frontline workers caring for facility residents during the pandemic. As Mosher notes, “In most cases, these people are just as much victims as the residents.”
Instead, the lawsuits are going after nursing home owners and operators, a population that has become increasingly dominated by private equity firms, shell companies, and other secretive for-profit operations, which make staffing and other decisions about quality of care in boardrooms and corporate offices far removed from those who are impacted.
The results of these cases are not about simply scoring million-dollar settlements and padding lawyers’ pockets, say legal experts. Torts and class action suits are an important deterrent to bad behaviors in an industry that has become known for lax oversight.
What caught the Justice Department’s eye was Gov. Cuomo’s claim that New York’s nursing-home deaths were lower than many other states’ and that his March 25 order didn’t contribute to the extremely high number of New Yorkers who died from Covid. Given the virus’s disproportionate effect on the elderly, sick and frail, this seemed unlikely. On Aug. 26, Justice’s Civil Rights Division, relying on its jurisdiction to investigate government-run facilities under the federal Civil Rights of Institutionalized Persons Act, asked the Cuomo administration for data on New York’s publicly run nursing homes, which account for less than 5% of nursing homes in the state.
In September, New York produced data showing it had underreported Covid deaths in government-run nursing homes by a third. The undercounting appeared to be due to several factors. First, when a nursing-home resident who contracted Covid died after being transported to a hospital for treatment, New York didn’t count it as a “nursing-home death.” Second, New York didn’t include deaths occurring before the Centers for Medicare and Medicaid Services began requiring Covid reporting from nursing homes in mid-May. CMS made reporting prior Covid deaths optional, and New York apparently elected to keep the information to itself.
With pressure coming from both sides of the aisle into investigating New York Gov. Andrew Cuomo’s handling of nursing homes during the peak of the COVID-19 pandemic, he has vowed sweeping reform as part of the 30-day amendments.
Cuomo announced reforms to improve the health, quality of life, and safety of nursing home residents to ensure that “facilities prioritize patient care over profits.”
“You can’t say to a nursing home that ‘either you can buy new beds, or you can make more money,’ ” Cuomo said during a COVID-19 briefing on Friday, Feb. 19. “It’s not a matter of hiring more staff or helping people or making more money.
“The salient policy question isn’t whether the March 25th memo introduced COVID into nursing homes, but whether it contributed to higher infection and mortality rates.
“The department’s comments show that it either doesn’t understand statistics, or is willfully ignoring our findings. Our analysis does, in fact, show a consistent relationship between transfers from hospitals to nursing homes and COVID fatalities. These findings were robust to several statistical assumptions.
“Our report included a statewide statistical analysis, which showed that transfers were associated with deaths at the 99 percent confidence level. Those statewide estimates are the ones we used to estimate that transfers were associated with hundreds of additional deaths. In digging a bit deeper, we hypothesized a differential effect upstate and downstate, which was then corroborated by our analysis.
The admission of coronavirus-positive patients into New York nursing homes under March 25 guidance from the New York State Department of Health was associated with a statistically significant increase in resident deaths.
The data show that each new admission of a COVID-positive patient correlated with .09 additional deaths, with a margin of error (MOE) of plus or minus 0.05.
Further, admitting any number of new COVID-positive patients was associated with an average of 4.2 additional deaths per facility (MOE plus or minus 1.9).
The effect was more pronounced upstate—possibly because the pandemic was less severe in that region at the time, so that even a single exposure would have had a larger impact on the level of risk.
Between March 25 and May 10, 2020, an advisory from Cuomo’s Department of Health (DOH) compelled nursing homes to readmit hospitalized Covid-19 patients without checking if they still had active infection. Health experts cautioned that the policy could lead to additional deaths by introducing infected people into closed facilities where those most vulnerable to the disease—the elderly and infirm—live. Cuomo’s responses ranged from the devil—aka the Trump administration—made me do it; to we didn’t force anything—facilities had discretion to turn down admissions; to “nothing to see here”—the policy didn’t increase the number of deaths; to “who cares” where they died.
Cuomo repeatedly and falsely claimed that the policy was directed by federal guidance. A July DOH report (now revised) also claimed that the nursing-home admission policy was following federal guidance that homes “should accept residents with COVID-19.” In fact, the federal guidance was permissive, not proscriptive: “A nursing home can accept a resident diagnosed with COVID-19 . . . as long as the facility can follow CDC guidance for Transmission-Based Precautions” (emphasis added).
The full scope of the investigation is not immediately clear, but the sources said there was a particular interest in nursing homes, which have been a source of increasing frustration for Cuomo.
Last week, an aide conceded the administration withheld the nursing home death toll from state lawmakers out of fear it would be used against the state by the Trump administration.
The controversy over nursing home deaths has dogged Cuomo for months. At the onset of the pandemic, state health officials directed nursing homes to accept residents recovering from the virus as they were discharged from hospitals.
The directive was rescinded several weeks later, but Cuomo faced criticism that it contributed to a high level of deaths in nursing homes. The governor said he based the decision on federal guidance at the time and insisted staff members, not residents discharged from hospitals, brought coronavirus into nursing homes.
The FBI and the U.S. attorney’s office in Brooklyn have launched an investigation that is examining, at least in part, the actions of Gov. Andrew M. Cuomo’s coronavirus task force in its handling of nursing homes and other long-term care facilities during the pandemic, the Times Union has learned.
The probe by the U.S. attorney’s office in the Eastern District of New York is apparently in its early stages and is focusing on the work of some of the senior members of the governor’s task force, according to a person with direct knowledge of the matter who is not authorized to comment publicly.
I don’t think anyone is suggesting that the nursing homes themselves are without blame. As soon as it became obvious that there were outbreaks of the virus in any senior facility, the administrators should have been moving to set up isolation wards and impose more rigorous disinfecting and screening protocols. Some homes did that while others clearly failed. I will also agree that having a cap of $10,000 per violation of the state’s health codes amounts to a slap on the wrist and doesn’t provide much incentive to do better.
With all of that said, however, Cuomo’s team is still completely ignoring the elephant in the room. There were nursing homes in New York at the start of the pandemic that were trying to refuse reentry to residents who tested positive for the novel coronavirus. It was Andrew Cuomo, acting under the extraordinary executive emergency powers granted to him by the state legisature that ordered all of the homes to accept returning residents and forbade them from requiring a negative COVID test as part of the process.
Cuomo also threatened non-compliant nursing homes with crippling fines or the loss of their license to operate. So while some of the nursing homes were clearly failing to take all possible precautions, even the ones who were trying to do the right thing were forbidden from doing so. There is one and only one person responsible for the subsequent deaths in those homes and that’s the person who picked up his pen and issued the orders.