Metropolitan New York was the first epicenter of the COVID-19 pandemic in the spring of 2020, and Gov. Andrew Cuomo received significant criticism for his decision to require nursing homes to accept residents regardless of their coronavirus status.
The controversy, which was reignited last month after the state attorney general’s office released a report claiming that the death toll in nursing homes was undercounted by as much as 50%, flashed over on Friday after a news item revealed that the Cuomo administration may have deliberately held back nursing home data over fears of political reprisals.
Cuomo secretary Melissa DeRosa apologized to Democratic lawmakers in the state, saying that “we froze” when faced with an August request for more information about nursing home deaths in the Empire State, according to a report in the New York Post.
“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, what we start saying, was going to be used against us while we weren’t sure if there was going to be an investigation,” DeRosa said, according to the Post.
DeRosa referenced then-President Trump’s use of the controversial nursing home admission order — along with similar policies enacted by Democratic administrations in states such as New Jersey and Michigan — as a political cudgel during the lead-up to the fall election, the Post reported.
DeRosa told the New York Times that her comments referred to a decision to respond to federal information requests before state-level inquiries, saying the administration was “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 nursing home admission issue indeed became a partisan football last summer and fall, with House Republicans blaming Democratic governors and a top House Democrat blaming the Trump administration and several large nursing home providers.
Cuomo, who rose to national media prominence amid the pandemic, also publicly sparred with then-Centers for Medicare & Medicaid Services (CMS) administrator Seema Verma, with each pointing to the other as the source of the admission guidance.
The nursing home industry in New York, for its part, raised grave concerns in March 2020 about the health department’s order preventing them from using a negative COVID-19 test as a prerequisite for admission.
Stephen Hanse, president and CEO of the New York State Health Facilities Association, told SNN last March 26 that the order was “tremendously problematic” given shortages of staffing and personal protective equipment (PPE). At that point, many facilities remained virus-free; some nursing home owners had volunteered to create dedicated COVID-19 buildings, according to Hanse, but the state had not granted rule flexibilities that would allow operators to do so.
“As the hospitals are trying to push people into nursing homes and potentially risking expanding the spread of COVID-19, they’re not waiving the transfer or discharge requirements [for nursing homes],” Hanse told SNN at the time. “If they were to waive those, we could bring COVID residents into one building and cohort.”
Cuomo in April insisted that nursing homes that couldn’t care for COVID-19 residents were required to make alternative arrangements, though the entire system was under strain at that point — and critics have noted that a vast emergency hospital at the Jacob K. Javits Convention Center in Manhattan went largely unused.
“They have to readmit COVID-positive residents, but only if they have the ability to provide the adequate level of care under Department of Health and CDC guidelines,” Cuomo said in April. “If they do not have the ability to provide the appropriate level of care, then they have to transfer that patient, or they call the Department of Health, and the Department of Health will transfer that patient.”
The guidance was not reversed until May 10, when the state explicitly banned hospitals from discharging COVID-positive residents to nursing homes, but the damage was already done: more than 9,000 such patients were sent to nursing homes during the pandemic, according to new numbers released to the Associated Press.
The Cuomo administration in July issued a report claiming that asymptomatic staff members, and not residents, were the primary driver of COVID-19 infections in nursing homes, though the controversy over the order did not subside.
The issue gained renewed interest late last month when New York State AG Letitia James issued a blistering report criticizing both the admission policies and a nursing home industry her office described as woefully underprepared for the pandemic.
“Already-low staffing levels decreased even further, to especially dangerous levels in some homes, even as the need for care increased due to the need to comply with COVID-19 infection control protocols and the loss of assistance from family visitors,” the office observed. “OAG’s preliminary investigations reflect many examples where for-profit nursing homes’ pre-pandemic low staffing model simply snapped under the stress of the pandemic.”
Cuomo himself vacillated between tough talk about nursing operators’ role in the disaster and the inevitability of virus deaths. In late April 2020, Cuomo and James announced an investigation into the state’s long-term care industry, promising $10,000 fines for every instance of non-compliance and threatening to revoke operators’ licenses.
“Remember how the nursing home system works: They are private facilities. They get paid to provide a service. They get regulated by the state government. There are certain rules and regulations that they must follow,” Cuomo said at the time.
Less than a month later, the governor struck a far more philosophical tone about placing blame for nursing home deaths, pointing to the 139 people who had died in New York hospitals on a given day in May when asked how families of nursing home residents might pursue justice.
“Who is accountable for those 139 deaths? How do we get justice for those families that had 139 deaths? What is justice? Who can we prosecute for those deaths?” Cuomo asked rhetorically. “Nobody. Nobody. Mother Nature? God? Where did this virus come from? People are going to to die by this virus. That is the truth.”