ALBANY — Gov. Andrew Cuomo, his administration and the state Health Department’s delay in releasing New York’s total number of COVID-19 nursing home deaths created a void that allowed for the spread of misinformation, he said Monday.
Cuomo publicly addressed the controversy surrounding the state’s nursing home deaths in the state Capitol on Monday, unprompted, for the first time in many weeks after reports a top aide admitted the administration intentionally delayed publishing total nursing home fatalities out of fear of political retaliation from President Donald Trump and federal prosecutors.
Calls from Democrats and Republicans alike have increased over the last five days for an independent investigation of the state’s COVID-19 policies in nursing homes and its six-month delay to release total virus death counts in congregate facilities to the Legislature.
Cuomo said Wednesday the information delay created a void that backfired.
“We made a mistake in creating the void when we didn’t provide information — we should have done a better job at addressing misinformation,” Cuomo said during one of his longest coronavirus briefings since the pandemic began. “In retrospect, we should have prioritized providing more information.”
More than 15,000 New York nursing home residents died from COVID-19 complications since the state’s first official case March 1, including those outside the facility in hospitals or hospice and presumed virus fatalities when testing was scarce at the start of the pandemic. The state reported just under 9,000 deaths at the end of January.
Cuomo argued his administration did not intentionally underreport the state’s number of nursing home deaths, but paused gathering nursing home data requested by the state Legislature in August because of a federal inquiry about New York’s COVID-19 deaths in congregate facilities.
“We paused the state legislators’ request while we were finishing the DOJ request,” Cuomo said. “We told both houses, the Assembly and the Senate, that we had DOJ request for information and we were prioritizing that. We did give the DOJ request precedence and we told both houses that.”
The U.S. Department of Justice sent a letter to Cuomo on Aug. 26 requesting COVID-19 data because of a March 25 state Health Department memo that allowed virus-positive nursing home patients to return to the facility to recover. The order was replaced in early May.
The Justice Department’s letter was a request for data from public nursing homes, or about 26 facilities, including five state-run facilities and a number of county-run sites.
“Data had to be collected and reviewed,” Cuomo’s special counsel Beth Garvey said Monday. “I believe it was 26 nursing homes that we provided voluminous documentation on and all of that had to be verified.”
Justice Department counsel sent a subsequent inquiry Oct. 28 requesting data from the state’s private nursing homes, according to the governor’s office.
“We have been voluntarily producing information on that on a rolling basis as recently as Jan. 8 as offered by DOJ,” Cuomo said.
The governor’s office has not specifically released what data was sent to the Justice Department.
The Justice Department did not respond to requests for an update on the inquiry or what data the state provided the federal government as of press time.
Cuomo’s top aides told top Assembly and Senate staff about the DOJ inquiry after some legislative leaders said they did not know about the federal request.
“Legislative staff was told by my staff,” Cuomo said. “There was no secret about the DOJ letters. They were in the newspapers. ... So we told both houses through the staff. That’s communication on the day-to-day basis.”
Senate Minority Leader Rob Ortt, R-North Tonawanda, said chamber Republicans were not notified about the Justice Department request from Cuomo’s administration.
The governor said his team worked tirelessly 24 hours a day, which added to the delay for information.
“Everyone was busy; everybody was here every day,” Cuomo said. “We’re in the midst of managing a pandemic. There was a delay in providing the press and the public all that additional information.
“The void allowed misinformation and conspiracy, and now people are left with the thought of, ‘Did my loved one have to die?’ And that is a brutal, brutal question to pose to a person. And I want everyone to know, everything was done. Everything was done by the best minds in the best interest and the last thing we wanted to do — the last thing that I wanted to do was to aggravate a terrible situation.”
Ortt blasted Cuomo for not apologizing and shifting blame.
“The governor’s major excuse for the failure of his Administration to provide accurate, timely information to the public was, ‘We were busy,’” Ortt said in a statement. “This is a pathetic response coming from a man who had the time to publish and promote a book about his pandemic response while New Yorkers clamored for the truth.
“People want the truth and the only way that can be provided is through investigations by the Department of Justice and the attorney general.”
Assembly Minority Leader Will Barclay, R-Pulaski, has for months called for an independent investigation with subpoena power, and said the governor’s poor reasons for withholding the data are proof the Legislature must petition or pass legislation to move forward with a probe.
“The governor’s deflections and finger-pointing have run their course,” Barclay said in a statement. “...If, as the governor claims, the inquiry from the federal Department of Justice occupied so much time and attention, why not release the information that was ultimately given to federal authorities?”
The Health Department has about 5,000 workers, Barclay said.
“That would seem to be enough manpower to ensure requests are fulfilled in an efficient manner,” he continued. “The time for the governor’s spin is over. The time to take action is now. The Legislature must remove Gov. Cuomo’s emergency authorities and initiate subpoena-driven public hearings. The state Attorney General’s Office and federal Department of Justice must continue with expanded investigations until we arrive at the truth.”
For nearly a year, Cuomo has defended the state’s March 25 memo, which he said followed federal Centers for Medicaid & Medicare Services guidance from March 13 and March 23 U.S. Centers Disease Control and Prevention guidelines.
At the time, health experts believed asymptomatic COVID-19 patients did not spread the disease. The CDC released a subsequent report last June that asymptomatic virus patients are contagious.
“Twelve other states, at least, followed [that] guidance,” Cuomo said. “The CDC, CMS, DOH reasoning at the time — residents who were leaving the hospitals were not likely to be contagious because at that time, the viral load is so low that you’re not contagious.”
State nursing homes are required to not accept a patient unless they can provide the proper care, including personal protective equipment, staffing and ability to section an area for quarantining.
“If they don’t do that, they violate the law,” Cuomo said. “The patients were not sent to nursing homes. The nursing home had to agree that they could agree to care for this person.”
Cuomo also reiterated the March 25 directive was put in place at a time when state officials were scrambled to reduce hospital capacity. The state’s high projection of COVID-19 hospitalizations was 140,000 people last spring.
“We’re watching China with a hospital capacity issue where they were building thousands of new hospital beds. That is what was going on. That’s why the CDC and that’s why the CMS made those decisions at the time,” the governor said.
The state will propose for-profit nursing home reforms in upcoming 30-day budget amendments to the Legislature ahead of the April 1 budget deadline, Cuomo said.
Proposals will include a state mandate for how an adult-care center’s profit is returned to improve the facility.
“If you’re trying to make profit, it’s too easy to sacrifice patient care,” he said. “Everything becomes one of the other. Do you want to hire more staff, or do you want to make more profit? Do you want to buy more PPE, and stockpile more PPE, or do you want to make more profit?
“That tension is a problem and that has to be resolved legislatively because I don’t want to leave it to these for-profit owners to decide what’s right and what’s wrong.”
Officials report 365 of the state’s 613 nursing homes received a virus patient from a hospital. Cuomo said about 98% of the 365 facilities already had confirmed cases of COVID-19 or virus exposure before hospital patients re-entered a nursing home.
“COVID did not get into the nursing homes by people coming from hospitals — COVID got into the nursing homes by staff walking in to the nursing homes when we didn’t even know we had COVID,” Cuomo said. “COVID may have been brought into a nursing home because visitors brought it in and didn’t know they were contagious because the guidance was, you can only be contagious if you have symptoms: if you’re sneezing, if you’re coughing. That turned out to be wrong. That’s how COVID got into the nursing homes.”
Cuomo ensured New Yorkers on Friday state COVID-19 decisions are made with the assistance of international medical personnel, including the World Health Organization and National Institutes of Health.
Cuomo touted state Health Department Commissioner Dr. Howard Zucker’s global health training.
“I would trust Dr. Zucker with my mother’s care — that’s why I trust him with your mother’s care,” the governor said. “I wouldn’t have anyone as the health commissioner who I wouldn’t trust with my mother and that’s why I trust him with your mother.”