Zucker silent on federal nursing home probe at hearing

Health Department Commissioner Dr. Howard Zucker at Gov. Andrew Cuomo’s COVID-19 briefing in Manhattan on Sept. 24, 2020. Courtesy of Gov. Andrew Cuomo’s Office

ALBANY — The state Department of Health’s sluggish release of COVID-19 nursing home data came to a head Thursday night after it was revealed that a top aide to the governor admitted to withholding the total number of virus deaths in state facilities.

Lawmakers continue to be at odds after the department publishing additional death figures Wednesday night in response to a court order and advocates increased demand for an investigation with subpoena power into the state’s handling of the crisis in congregate facilities.

“This is clearly a gross obstruction of justice,” state Senate Minority Leader Rob Ortt, R-North Tonawanda, said in a prepared statement Thursday night reacting to the report. “Instead of apologizing or providing answers to the thousands of New York families who lost loved ones, the Governor’s administration made apologies to politicians behind closed doors for the ‘political inconvenience’ this scandal has caused them.

“There is no need to deny what everyone in Albany and around New York State already knows: Gov. Cuomo controls every aspect of his administration with an obsessive attention to detail. I am again calling that Gov. Cuomo and his administration be investigated from top to bottom and that he be stripped of his emergency powers. Justice needs to be brought for the grieving families who have been ignored to protect Gov. Cuomo and his Democrat allies in the Legislature.”

If the governor is involved in the withholding of information, he should be removed from office, Ortt said.

“We explained that the Trump administration was in the midst of a politically motivated effort to blame Democratic states for COVID deaths and that we were cooperating with federal document productions and that was the priority and now that it is over, we can address the state Legislature,” Cuomo’s senior adviser Rich Azzopardi said in a response posted to Twitter on Thursday night. “That said, we were working simultaneously to complete the audit of information they were asking for.”

State Health Department Commissioner Dr. Howard Zucker revealed Wednesday that 15,049 residents of nursing homes or other long-term care facilities died of COVID-19 as of Feb. 9, including 4,122 nursing home resident deaths that took place outside the facility.

Cuomo’s administration and Zucker released additional data of coronavirus deaths Wednesday to comply with a court order six months after the Empire Center submitted a Freedom of Information Law request to the department and five months after filing suit.

The additional data includes residents from long-term care facilities with the number of presumed fatalities, the daily breakdown and total virus deaths that occurred outside the facility — most often in a hospital — since the pandemic began.

“Between last week’s court order and tonight’s formal response, the department posted new death totals for each facility, including hospital deaths that had previously been omitted,” according to a statement from the Empire Center late Wednesday. “Those revelations increased the known death toll from about 9,000 to almost 15,000 — making clear that the pandemic’s toll on long-term care residents was much worse than the Cuomo administration previously portrayed it to be.”

A state Supreme Court justice ruled Feb. 3 in favor of a September lawsuit filed by independent think tank Empire Center for Public Policy and Sen. Jim Tedisco, R-Glenville. The Health Department delayed the Empire Center and Tedisco’s Freedom of Information Law requests for the data three times.

The state did not release daily death records for about 600 people presumed to die from the coronavirus outside adult care facilities.

“The department provided a summary of those deaths, but not their dates,” according to the Empire Center. “The department has been reporting presumed deaths inside the facilities since early May. Withholding this data appears to be a violation of Justice Kimberly O’Connor’s court order, and we will attempt to address this first with DOH.”

Assembly Republicans on Thursday released a Feb. 2 letter and petition they sent to Democratic members of the Oversight, Analysis and Investigation Committee requesting lawmakers sign the petition to request a public hearing about the state’s COVID-19 response in nursing homes and subpoena Zucker for an independent probe of the issue.

“Legislative law allows for a majority of a legislative committee to issue a subpoena; collecting this majority of signatures would formalize the ability to subpoena Dr. Zucker and compel him to answer questions about a scandal that has ravaged tens of thousands of New Yorkers,” state Assembly Minority Leader William Barclay, R-Pulaski, said Thursday.

Assemblymen Joseph Angelino, R-Norwich; a ranking member of the Oversight, Analysis and Investigation Committee; and Michael Montesano, R-Glen Head; sent the letter to committee Chair John McDonald, D-Cohoes; and committee members Assemblymembers Nathalia Fernandez, D-Bronx; William B. Magnarelli, D-Syracuse; Fred W. Thiele Jr., I-Sag Harbor; and Phil Steck, D-Schenectady.

Assembly Republicans had not received a response to the petition or letter as of Thursday, Barclay said.

Senate and Assembly chairs of the Oversight, Investigations and Analysis Committee and Aging, and Health committees met with Zucker and Cuomo advisers this week regarding the delayed receipt of information, McDonald said in a statement Thursday afternoon.

“The conversation, which would have been timely in the fall of 2020 after the letter was first sent seeking additional information, was vigorous yet insightful of the complex challenges that the state faced within the confines of a complex reporting system,” McDonald said. “I believe Dr. Zucker and the Department of Health (DOH) are earnestly seeking to provide accurate information for the Legislature and the public.

“I understand that DOH will be providing additional information that will provide us facts as related to the overall response to COVID-19, especially as it relates to the nursing home deaths, and I expect that information will be in short order,” McDonald continued. “Once that information is provided and my colleagues have an opportunity to digest that information, we will determine how to proceed.”

Steck said Thursday he had not seen the letter from the minority. As a member of the Oversight, Analysis and Investigation Committee he deferred comment to McDonald, the committee chair.

Zucker on Wednesday responded to an August 2020 letter from lawmakers containing several questions about COVID-19 and the state’s response in congregate facilities following an Aug. 3 joint legislative hearing where the commissioner did not answer representatives’ queries or declined to provide specific data about the subject.

The department is challenged in publicizing accurate data in real time as the pandemic continues, Zucker said.

The Health Department regularly collects coronavirus data from hospitals, laboratories, adult care facilities, for an unprecedented number of records, according to the commissioner.

“To date, the federal government has not mandated states report data in a uniform way,” Zucker said. “As a result, there’s a lack of consistency in data reporting nationally ... Only nine states, including New York, reports COVID nursing home fatalities that are ‘presumed’ rather than confirmed by a lab test. That inconsistency can skew the numbers.”

Zucker argued 13 states do not share any long-term care facility COVID death data.

Democrats expected Zucker to release COVID-related nursing home data at the state Legislature’s joint hearing on health, which was originally scheduled for Feb. 3. The hearing was rescheduled to Feb. 25.

Six Democratic legislators, including Sens. Rachel May, who chairs the Aging Committee; Gustavo Rivera, who chairs the Health Committee; and James Skoufis, who chairs the Investigations and Government Operations Committee, met privately Wednesday for two hours on Zoom with top aides from Cuomo’s office to discuss the long-awaited data.

“While we appreciate that our letter from August 2020 has finally been answered and, two weeks ago, nursing home data was released, it is unacceptable that it took so long,” May, Rivera and Skoufis said in a joint statement. “Our original letter was sent following 40 hours of hearing testimony and after so many legislators, families, and members of the public demanded answers.”

May, one of the legislators present, said the closed, virtual meeting was helpful because it was the only way to get officials to speak candidly.

“It was the only way to get that real sense that they would open up and sort of set the defensiveness aside and just answer our questions,” May said.

Sen. Sue Serino, R-Hyde Park, blasted her Republican colleagues for the closed, secret meetings.

“Certain members of the supermajority are blatantly ignoring New Yorkers’ calls for transparency and secretly meeting with the Governor’s team to discuss the issue — this is politics at its absolute worst,” said Serino, a ranking member of the Senate Aging Committee. “Those who lost loved ones have been denied the transparency they deserve long enough. It’s time for the Legislature to send the subpoenas and launch the independent investigation needed to get real answers, inform policy and save lives.”

After the Health Department did not respond to the August letter within senators’ three-week deadline, Sens. Serino and Tedisco urged committee chairs to use subpoena power to get the answers to the important questions.

“To date, the Supermajority has taken no action in this regard,” according to a statement from Serino’s office.

Tedisco plans to introduce legislation to create penalties for public officials who ignore Freedom of Information Law requests, he said.

“The deaths of about 15,000 New Yorkers from the coronavirus in state-regulated nursing homes has been one of the worst, most horrific events in our state’s history,” Tedisco said in a statement. “Families of those who lost loved ones to the virus deserve closure and we need to know what went wrong that enabled this terrible tragedy to occur.”

Cuomo, state health officials and many Democrats continue to say the largely Republicans push for an investigation is politically motivated and not rooted in scientific facts. The novel coronavirus globally spread in adult care facilities and nursing homes because the disease targets congregate settings and vulnerable populations — especially the elderly.

The Health Department first released audited data in response to a report from state Attorney General Letitia James’ office that state official underreported COVID-19 nursing home deaths as much as half the total number.

The state revealed 12,743 total COVID-19 deaths of skilled nursing facility residents from March 1, 2020, through Jan. 19 of this year, reflecting a 42.36% increase in the state’s previously published total COVID-19 deaths in nursing homes

Families of nursing home residents and advocates continue to push for a probe of state COVID-19 rules impacting virus spread in congregate facilities, and a controversial March 25, 2020, Health Department memo. The memo mandated long-term care facilities and nursing homes must accept virus-positive residents, and cannot discriminate against them for a medical condition by denying them the chance recover at home.

“Some of the interest is focused solely on the March (memo) when the bigger picture must be considered,” McDonald said Thursday.

Zucker defended the order in his 16-page letter Wednesday.

“The March 25 advisory memo issued by the Department (not by executive order), was not a change in law or regulation, and it did not impose new responsibilities on nursing homes,” Zucker said.

He said the document follows guidance from the U.S. Centers for Disease Control and Prevention.

The order, which disappeared from the Health Department’s website in May, allowed COVID-positive residents to be permitted to return to the congregate care facility. Officials have argued that, at the time, they discharged virus patients expected to recover because of hospital capacity concerns.

Tribune News Service contributed to this report.

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