ALBANY — Dozens of family members and friends of loved ones who died from COVID-19 in nursing homes joined lawmakers outside the state Capitol on Thursday to mourn the thousands of New Yorkers who died in congregate facilities and designate a statewide day of remembrance in their honor.
Officials and activists gathered on the one-year anniversary of the state Health Department’s controversial March 25, 2020, memo, which allowed COVID-positive residents to return to their nursing homes or congregate-care facilities to recover.
The state’s March 25 memo remained in effect until May 10 and is not found on the state Health Department’s website.
“We’re here to speak for someone who cannot speak because of the March 25 mandate of last year,” said Phil Minissale, whose 93-year-old mother, Agnes, died from COVID-19 last April.
Agnes lived in the Teresian House Center for the Elderly in Albany, but died from virus complications in a local hospital.
More than 9,000 patients recovering from COVID-19 last year were discharged from hospitals into the state’s 613 nursing homes.
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 until Attorney General Letitia James released a report Jan. 23 that the state underscored the total virus-related nursing home fatalities up to 55%.
“As the attorney general’s report rightly points out, the March 25 Department of Health guidance was consistent with and followed federal guidance issued by the CDC and CMS and was not a directive to accept COVID patients if they could not otherwise provide appropriate care – a point the Attorney General’s Office found the nursing homes understood,” said Gary Holmes, a spokesman with the state Health Department.
The Health Department has conducted more than 2,500 COVID-focus surveys within New York’s 613 congregate facilities since March 1, 2020.
Many families and advocates have said congregate facility staff did not inform them about their loved one’s health or well-being after visitation was first suspended in mid-March. Family members and staff alike have said the facilities were unprepared with Personal Protective Equipment, testing and personnel to successfully keep the virus out.
“It truly is a day that will live in infamy,” Minissale said standing beside siblings Ted Minissale and Cindy Lizzi while holding white roses and photos of their mother. “Fifteen-thousand people, including our mom, passed away because of the mandate given by this governor. It’s inexcusable. It’s not right.”
“This mandate on March 25 ruined so many lives,” Lizzi added during the West Capitol Park rally Thursday morning. “Our hearts are broken forever.”
Gov. Andrew Cuomo, Health Department Commissioner Dr. Howard Zucker and other executive aides have said the March 25 directive was in line with federal guidance and last spring, health personnel discharged virus patients who were expected to recover because of hospital capacity concerns.
“While some commentators have suggested DOH’s March 25 guidance was a directive that nursing homes accept COVID-19 patients even if they could not care appropriately for them, such an interpretation would violate statutes and regulations that place obligations on nursing homes to care for residents,” according to state Attorney General James’s Jan. 23 report. “For example, New York law requires a nursing home to ‘accept and retain only those residents for whom it can provide adequate care.’ Preliminary findings show a number of nursing homes implemented the March 25 guidance with understanding of this fundamental assessment.”
Senate Republicans announced a resolution Thursday to recognize March 25, 2021, as We Care Remembrance Day. The measure was referred to the Finance Committee on Wednesday.
Sen. Sue Serino, R-Hyde Park, said it was important to pause to honor the legacies of thousands of New Yorkers who lost their lives.
“These residents were so much more than numbers on a state spreadsheet,” Serino said Thursday. “These were real people with real lives whose deaths should not be in vain. It is in their memory that we continue the fight for justice and for better policies to ensure that no one else ever has to suffer the way these families have.”
The U.S. Department of Justice opened an inquiry Aug. 26, requesting the numbers of public congregate facilities. Justice Department counsel sent a subsequent inquiry Oct. 28 requesting data from the state’s private nursing homes.
The U.S. Attorney’s office in the state’s Eastern District continues to investigate the work of several senior members of the governor’s state Coronavirus Task Force and the potential intentional withholding, or altering, of public information.
The state attorney general and federal investigations are ongoing.
Assemblyman Jake Ashby, a member of the chamber’s Health and Aging committees, said he hopes the ongoing probes shed light on the administration’s decisions and provides grieving families with closure.
“I truly hope that the federal investigation that’s going on will provide justice to these families — that’s my sincere hope,” said Ashby, R-Castleton. “We’ve only heard from a few families ... I know I’ve heard several from my constituents. Compounded with other restrictions going on at the time, it makes it that much harder.”
The Senate and Assembly passed legislation over the last several weeks to reform the oversight and transparency, quality improvements and protection from liability in state nursing homes and curb abuse of for-profit facilities.
Cuomo and Zucker have both said the governor will not sign the state’s upcoming budget, due April 1, without sweeping reforms to the nursing home industry to prioritize patient care over profit, increase data transparency and hold bad actors accountable.
Ashby, who worked in health care and nursing homes throughout his career, voiced support for the updated congregate facility staffing requirements, but added Thursday other reforms are necessary, as some families did not know their loved one was being transferred to a different facility or hospital at the height of the pandemic last year. Some miscommunication happened because of conflicting internal policies, he said.
“I can’t imagine that, as a family member, not knowing my loved one went to a different facility from where I lived for whatever reason, whether the reasons were valid or not,” Ashby said. “The fact that they don’t know speaks volumes to the challenges the industry is facing and, really, a lack of leadership in some cases.”
The New York Post first reported Cuomo’s top aide, Secretary to the Governor Melissa DeRosa, admitted the administration intentionally delayed publishing total nursing home fatalities out of fear of political retaliation on Twitter from President Donald Trump and potential federal prosecution.
Cuomo and his administration argue they did not intentionally underreport the state’s number of nursing home deaths, but paused gathering congregate facility data that the state Legislature requested August because of the Justice Department’s inquiry.
“Today, I sat and cried like a baby,” Sen. Daphne Jordan, R-Halfmoon, said of the families who shared personal stories. “I feel for them. They want justice to be done and I’m with them on that.”
“The investigation must continue on,” Jordan continued. “We’re very anxious to see the results of that and would hope it goes to a conclusion soon so that we could learn from this and those who have a price to pay, pay it.”
Lawmakers on both sides of the political aisle have called for an independent investigation with subpoena power demanding answers about the March 25 decision.
Assemblyman Ron Kim, D-Queens, had relatives die in state nursing homes from COVID-19 early in the pandemic, and said Thursday the Health Department memo was “fatally flawed.”
“This deadly decision, made just after [Gov. Cuomo] forced through legal immunity in our state budget for for-profit nursing home executives and shareholders, has led to thousands of deaths and counting,” Kim said. “...By the time the deadly consequences of the governor’s actions became widely known, my office had spoken to countless families in the same situation.”
The majority of state and congressional Democratic leaders, including U.S. Senate Majority Leader Chuck Schumer and Sen. Kirsten Gillibrand, both D-N.Y., have called for Cuomo to step down after eight women, including current and former aides, accused him of sexual harassment and misconduct.
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“This governor has lost the confidence of both my colleagues and the people of New York, and he must be held accountable for his actions,” Kim said. “His cover-up and erasure of thousands of nursing home deaths will not be forgotten. He does not have the moral decency to govern our state. We have grieved for far too long now without any real closure, but I am proud of everyone for the tenacity and willpower they have shown. I know that our loved ones would also be proud of the long road we have walked and continue to walk in pursuit of the truth. We seek justice, we demand justice and no matter how long it takes, we will have justice.”
Nursing home workers from 1199SEIU were scheduled Thursday afternoon to lay 150 carnations to represent the 15,000 resident lives lost to COVID. Memorials were scheduled for many areas across upstate in addition to Albany, Harlem, Hicksville and Peekskill.
Sen. Alessandra Biaggi and Assemblymember Yuh-Line Niou, both Democrats from New York City, were slated to attend a 5:30 p.m. vigil in Manhattan.
Kim and Sen. Jim Tedisco, R-Glenville, has sponsored legislation for the Legislature to begin a separate probe since late last summer.
Tedisco blasted Cuomo on Thursday, saying the governor distorted the truth and reality about the state’s handling of the public health emergency while he wrote and published “American Crisis: Leadership Lessons from the COVID-19 Pandemic” about New York’s success in fighting the virus.
“He was writing a book about being a COVID slayer — he actually was and became and is a COVID purveyor,” Tedisco said. “It’s important to never forget. This particular day, we can never forget.”