ALBANY — Many state Democrats publicly joined Republicans’ cries Friday for an independent investigation into the state’s delay in releasing COVID-19 death data in New York nursing homes and rescinding Gov. Andrew Cuomo’s broadened authority lawmakers granted at the start of the coronavirus public health emergency last March.
Legislative leaders in both chambers are discussing the potential for an independent probe into the state’s COVID deaths in congregate facilities after Secretary to the Governor Melissa DeRosa admitted to Democratic lawmakers in a private Zoom call this week that the administration intentionally underreported the total nursing home fatality count out of fear of political retaliation from President Donald Trump and federal prosecutors.
“...Basically, we froze, because then 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,” DeRosa said to Sen. James Skoufis, D-Woodbury, according to a partial transcript from the governor’s office. “What we start saying was going to be used against us while we weren’t sure if there was going to be an investigation.”
The New York Post first reported DeRosa’s statements Thursday after obtaining a recording of Wednesday’s two-hour closed virtual meeting between Cuomo’s top aides and several Democratic legislators, including Sens. Rachel May, who chairs the Aging Committee; Gustavo Rivera, the Health Committee chairman; and Skoufis, who chairs the Investigations and Government Operations Committee.
The state’s reported total of COVID-19 deaths in congregate care facilities has increased nearly 60% over the last two weeks to 15,049 people in adult-care facilities who died from the virus as of Feb. 9, including 4,122 nursing home resident deaths that took place outside the facility.
The Health Department reported 8,951 total COVID-19 nursing home fatalities Jan. 27.
The state was mandated to release 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.
“We said we would release additional data once our audit was complete and ahead of the commissioner’s budget testimony — We’re doing that,” state Health Department spokesman Gary Holmes said in a statement Friday. “In the meantime, we remain focused on this pandemic response and a comprehensive vaccination program that has already administered more than two million first doses.”
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. Many people argue the directive may have contributed to the deaths of thousands of elderly nursing home residents.
The Senate and Assembly each sent Health Department Commissioner Dr. Howard Zucker a letter with several questions about COVID deaths in adult-care facilities and the state’s policies in August. Zucker declined to answer representatives’ questions in a hearing on the issue Aug. 3.
In a statement Friday, DeRosa defended what she said to Skoufis.
“I was explaining that when we received the DOJ inquiry, we needed to temporarily set aside the Legislature’s request to deal with the federal request first,” she said. “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. As I said on a call with legislators, we could not fulfill their request as quickly as anyone would have liked. But we are committed to being better partners going forward as we share the same goal of keeping New Yorkers as healthy as possible during the pandemic.”
The Justice Department sent a subsequent inquiry Oct. 28 about the state’s nursing home data, according to the governor’s office.
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 Friday.
“Other than what was reported in the news, the Speaker had no knowledge of an official Department of Justice inquiry,” Assembly Director of Communications Michael Whyland said in a statement Friday of Assembly Speaker Carl Heastie, D-Bronx. “There was a formal request from Assembly committee chairs and other members to the Department of Health asking for more information on follow up questions in regards to data on nursing homes. The governor’s office communicated to staff that they needed more time to provide the information.”
Fourteen Democratic senators called for the immediate repeal of Cuomo’s emergency powers and broadened spending authority Friday that the Legislature approved March 3 in response to the COVID-19 pandemic.
May, Rivera and Skoufis were three of the 14 representatives on the joint statement, which included Democratic Sens. Alessandra Biaggi, Jabari Brisport, Samra Brouk, Jeremy Cooney, Andrew Gounardes, Robert Jackson, John C. Liu, John Mannion, Elijah Reichlin-Melnick, Julia Salazar and James Sanders.
“We urge the Senate to advance and adopt a repeal as expeditiously as possible,” according to the senators’ joint statement Friday. “Without exception, the New York State Constitution calls for the Legislature to govern as a co-equal branch of government. 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.”
Cuomo’s executive authority to issue directives is set to expire April 30.
Mannion, D-Syracuse, separately blasted Cuomo and his administration Friday for concealing the data for more than six months.
“The governor’s lack of transparency and stonewalling regarding his administration’s nursing home actions is unacceptable,” Mannion said. “Emergency executive powers granted to manage the COVID-19 crisis are no longer needed or deserved. We must immediately re-establish proper legislative oversight through public hearings with witnesses under oath. Basic government information and data long sought by the New York State Senate must be provided.
“It is the legislature’s duty to New Yorkers to establish a truthful timeline and accounting of what has occurred. Every New Yorker deserves honesty from their government and there must be an accurate historical record. Inaction is simply not an option.
Sen. Michael Martucci, R-New Hampton, called for former state Southern District U.S. Attorney Preet Bharara to investigate the matter as an independent prosecutor.
State Attorney General Letitia James’s office did not return a request for comment about investigating Cuomo’s administration and executives’ withholding of COVID-19 fatality data.
Martucci’s call is one in the chorus of cries from the Senate minority conference who have called for an independent investigation of the state’s COVID-19 policies and the number of nursing home deaths.
Senate Maj. Leader Andrea Stewart-Cousins, D-Yonkers, said in a statement Friday Democrats will continue to discuss the appropriate next steps with a probe.
“Crucial information should never be withheld from entities that are empowered to pursue oversight,” Stewart-Cousins said. “This was always about getting the truth and allowing information to guide our response. That is why we had multiple hearings and another hearing scheduled for this month. And why we requested this information in the first place. Politics should not be part of this tragic pandemic and our responses to it must be led by policy, not politics. As always, we will be discussing next steps as a conference.”
Zucker is scheduled to testify at a joint legislative budget hearing about health care Feb. 25.
Senators in the Republican minority conference have presented a resolution to rescind Cuomo’s broadened powers since session began Jan. 6.
“For months, my colleagues have been accused of playing politics when in reality, we are trying to get answers for the thousands of families who lost loved ones in nursing homes,” Senate Minority Leader Rob Ortt, R-North Tonawanda, said Friday. “The leaked tape of the secret meeting held between administration officials and legislative Democrats confirms that not only did Cuomo’s office deliberately withhold information from the public and the Legislature, they did it to obstruct justice and dodge a federal investigation. It’s an absolute dereliction of duty and breach of public trust, and everyone involved must be held accountable.”