Governor, aides face increased scrutiny on nursing homes after leaked call

Scrutiny facing Gov. Andrew Cuomo and his top aides intensified Friday after a report in the New York Post claimed the administration purposefully withheld COVID-19 nursing home death data to avoid federal investigations.

The Post obtained an audio recording of Melissa DeRosa, secretary to the governor, apologizing to Democratic lawmakers and saying “‘we froze” in reference to releasing the accurate numbers of nursing home fatalities.

The nursing home numbers have been a point of contention for months, going back to legislative hearings held in August and most recently when New York Attorney General Letitia James released a report saying the nursing home fatalities were underreported by as much as 50%. Those deaths instead counted in the hospital data after residents had been transferred. The total count of the state’s fatalities remains unchanged.

Local elected officials who have been critical of the Democratic governor’s handling of the pandemic again condemned the administration.

State Senator Anthony Palumbo (R-New Suffolk) called it “flagrant corruption.”

 “As suspected, the Governor’s office was lying all along,” he said. “Their failure to provide nursing home data was intentional and an effort to obstruct justice. … Outrageously, the only time anyone heard an apology or got the truth is when the Governor’s office apologized to Senate Democrats for the political inconvenience they caused by covering up these statistics. Instead of circling the political wagons, Senate Democrats must join our efforts to subpoena the Governor’s office and get answers for the families who lost loved ones and justice for all New Yorkers.”

Congressman Lee Zeldin (R-Shirley) said the Department of Justice needs to open an obstruction of justice investigation into the governor and his administration.

“The families of thousands of dead New York seniors deserve accountability and justice for the true consequences of Governor Cuomo’s fatally flawed nursing home policy and the continued attempts to cover it up,” Mr. Zeldin said in a statement. “It’s clear what’s happening here is criminal.”

Mr. Cuomo, who is in D.C. Friday meeting with President Joe Biden, had so far not released any statements related to the newest report.

The New York Times obtained a partial transcript of Ms. DeRosa’s call with legislators Wednesday, in which she said: “We were in a position where we weren’t sure if what we were going to give to the Department of Justice, or what we give to you guys, and what we start saying, was going to be used against us and we weren’t sure if there was going to be an investigation.”

Ms. DeRosa released a statement Friday in attempt to add context to that conversation, saying that when the DOJ sent an inquiry, “we needed to temporarily set aside the Legislature’s request to deal with the federal request first. We informed the houses of this at the time. We were comprehensive and transparent in our responses to the DOJ, and then had to immediately focus our resources on the second wave and vaccine rollout.”

The blowback has spread to the governor’s own party, as a coalition of 14 Democratic state Senators on Friday called for a repeal of Mr. Cuomo’s authority to issue unilateral directives.

“Without exception, the New York State Constitution calls for the Legislature to govern as a co-equal branch of government,” their statement said. “While COVID-19 has tested the limits of our people and state — and, early during the pandemic, required the government to restructure decision making to render rapid, necessary public health judgments — it is clear that the expanded emergency powers granted to the governor are no longer appropriate.”

The State Department of Health has since released updated data following the attorney general’s report that outlines deaths at nursing homes and deaths that occurred outside the facilities, such as hospitals. In Suffolk County, there have been 663 confirmed deaths at nursing homes, plus 405 confirmed deaths outside of facilities. Another 267 deaths are presumed at nursing homes. Deaths are recorded separately for nursing homes and adult care facilities. Altogether, the total for Suffolk is 1,604, representing close to 55% of the county’s fatalities.

In Riverhead, Acadia Center for Nursing and Rehabilitation battled two outbreaks, in May and November, and a total of 39 fatalities were recorded, plus one presumed COVID-19 death. Two of those deaths occurred outside the facility.

On Thursday morning, prior to the latest revelations, Assemblywoman Jodi Giglio (R-Riverhead) joined fellow legislators in calling for a subpoena to compel Health Commissioner Dr. Howard Zucker to testify and explain decisions made on nursing homes.

“New Yorkers deserve answers to the developing nursing home scandal,” she said. “Using the correct venue and methods to get answers from Dr. Zucker is our duty as legislators and representatives of the people of New York. Families deserve answers, we deserve answers, and this is how we’re going to get them.”

At the center of the continued criticism of the state’s handling of nursing homes is the March directive that said nursing homes cannot discriminate against COVID-19 patients. At the time, the state said hospital capacity was too great a concern that nursing home patients could not occupy the hospital beds until testing negative. A report released by the Department of Health last summer argued that the patients were no longer symptomatic when they returned to nursing homes and were not the driver of the virus spreading.

The Associated Press reported this week that “more than 9,000 recovering coronavirus patients in New York state were released from hospitals into nursing homes early in the pandemic.” The AP reported that numbers if 40% higher than what the state DOH previously released.

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