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Gov. Andrew Cuomo on Monday offered commentary on coronavirus deaths related to nursing homes. His administration has been under fire for how it presented the numbers, with calls from Republican state leaders to lessen Cuomo’s emergency powers in this pandemic.
Cuomo said, “On my emergency powers, first emergency powers have nothing to do with nursing homes. I have taken hundreds of actions. The Legislature can reverse any action that I take, not even by a bill, just passing 50% of the Assembly and the Senate. They have never reversed a single action. The virus cannot be managed by state boundaries. We've learned that. It can't be managed by county boundaries. We've learned that. I've always consulted with the Legislature. I consult with other politicians. I have no problem consulting with the Legislature. Anyone wants to stand up and raise their hand and say here's my position, great. But these are public health decisions. They're not local political decisions and they have to be made on a public health basis. This virus is serious and I understand these decisions are difficult politically. I get that. It's difficult to close schools. It's difficult to close restaurants. It's difficult to impose curfews. But otherwise people die and these decisions should not be politicized. If you made these decisions by a poll, none of them would happen and more people would die.
“I want to clarify facts on the nursing homes, which has been an ongoing discussion. New York, as everybody knows, was ground zero for COVID, and nursing homes were and still are ground zero for COVID; and losing a loved one is very, very painful. Losing a loved one in a nursing home during this situation was extraordinarily painful. There was no visitation. You couldn't be with the person. You couldn't talk to the person. It was hard to get them on the phone. People in nursing homes are not as conversant and facile on Zooms and on FaceTime. I mean, it doesn't work that way – so I understand fully how difficult it has been and I want to make sure people have all the facts, the facts, the information.
“This past year, there was a toxic political environment and everything gets politicized and there's political spin and then there are facts – two very different things – and I just want to be sure people have facts. Last August, Department of Justice sent a letter to Democratic governors, four of them: New York, New Jersey, Michigan and Pennsylvania asking for information on public nursing homes. New York State Legislature also sent a letter asking for information on nursing homes. We paused the state legislators' request while we were finishing the DOJ request. 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 August request, we replied to fully. Separately, DOH got a DOJ letter signed by Jeffrey Clark, the attorney, in October – which we learned about from the New York Post. We didn't even get the letter. The Post called and told us about the letter and that requested information on private nursing homes and we have been voluntarily producing information on that on a rolling basis as recently as Jan. 8 as offered by DOJ – the rolling basis production.
“Second, we paused the State Legislature's request. We paused the State Legislature's request. We voluntarily complied with the DOJ request for information. Two very different things. The New York State DOH has always fully and publicly reported all COVID deaths in nursing homes and hospitals. They have always been fully reported. Nursing homes had the most vulnerable population. We know that. Nationwide, 36% of the population of deaths are in nursing homes. Do you know what percent of the population are people in nursing homes? One percent. One percent had 36% of the deaths. New York is 34 in nursing home deaths as a percentage of total deaths. Thirty-four out of 50 states. New York (is) one out of only seven states that counts what's called ‘presumed fatalities’ in nursing homes, where the nursing home presumed the cause of death was COVID. To give you an example, New York state, 13,000 nursing home-related deaths; that's 30% of total deaths.
“Pennsylvania had 11,900; that's 52% of their total deaths were in nursing homes. Florida, 34% of total deaths in nursing homes. Massachusetts, 54% of total deaths. If you look at the entire country, and you look at the percentage of deaths, New York is No. 34. If you look at the entire country, and you look at the percentage of deaths in nursing homes, New York is 34. You have some states that have up (to) 73% of the people who died in nursing homes.
“COVID preys on senior citizens, older people, weaker people. We've always known that. That's a fact. Now, there is much distortion around what's called ‘Department of Health memo’ on March 25 and I want to make sure that we get the facts on this.
“On March 13, federal Center for Medicaid and Medical Services – what they call CMS – and on March 23, the Center for Disease Control, the CDC, put out guidance sending people from hospitals back to nursing homes. New York State DOH followed that guidance. Twelve other states, at least, followed guidance. 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 and they were going to be what's called ‘cohorted’ – cared for on areas that are separately with other people under the right precautions. Patients should not remain in hospitals longer than necessary because they can get a secondary infection. That's true all across the board, especially with seniors. They try to get the procedures done, they try to get people out of the hospital before they can come up with a secondary infection; that's problematic.
“The patients were not sent to nursing homes. The nursing home had to agree that they could agree to care for this person. That is a matter of law. They cannot accept a patient who they are not prepared to care for properly: staff, PPE, ability to cohort. That is in the law. If they don't do that, they violate the law. At the time, remember what was going on in March. The experts were projecting that our problem and our critical need was hospital capacity. We sat here every day with the hospitalization chart. We were looking at up to 140,000 people hospitalized. We have less than 50,000 hospital beds. That is the calamity. Remember, March 25, that's right when the New York City Health & Hospitals collapsed. It was national news.
“I remember it like yesterday and we're watching the TV every night and we're watching Italy collapse and people die because they can't get into a hospital. 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 and at the time, CDC, CMS, there were White House task forces, there were daily briefings. Everyone was focused on this issue. This was not a little issue. All the best minds were looking at it.
“Fact: Of 613 nursing homes – we have 613 nursing homes in the state – 365 received a person from a hospital. Of the 365 that received a person from this March 25 guidance – which was superseded in May – 98% of those 365 already had COVID in their facility.
“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. Staff walking into a nursing home even if they were asymptomatic, because the national experts all told us you could only spread COVID if you had symptoms and they were wrong.
“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. Ninety-eight percent of the people who took a person back from a hospital, who was probably no longer contagious, already had it in the facility and they signed and agreed that they could handle it, because they already had people who were COVID positive in the nursing home.
“If you look at the rate of death before the March 25 order and after the order was rescinded, the rate of death is the same. By the way, if you look at the rate of death in the nursing homes in the spring overall and in the second surge – the winter/fall surge – the rate of death rate of death is the same.
“These decisions are not political decisions. They're all made based on the best information the medical professionals have at the time. And in New York, we talked to the best experts on the globe – and I've said to the people of this state many times, nobody has been here before. Nobody knows for sure. COVID is new. They're all giving you their best advice at the time. And these are really quality people: Dr. Osterholm, Dr. Fauci, all the main institutes that were giving advice to the nation, we had people come from the World Health Organization who dealt with China who came to Albany, literally, to advise us.
“We are blessed to have Dr. Howard Zucker as our health commissioner. He's trained at Harvard, U Penn, Johns Hopkins; served at HHS, WHO, NIH. He teaches at Columbia and Yale University. If we had to pay him what he was worth, we couldn't afford him. And he gave his best advice on the information that he had at the time. I would trust Dr. Zucker with my mother's care. That's why I trust him with your mother's care. 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.
“To be clear, all the deaths in the nursing homes and in the hospitals were always fully publicly and accurately reported. The numbers were the numbers, always. People did request information beyond the place of death – not just where, not just how many in a nursing home. Not just how many in a hospital. They did request different categorizations beyond those counts. ‘How many people died who were in a nursing home but then went to a hospital? How many people died who were in a hospital, but then went back to a nursing home? How do you count presumed COVID deaths?’
“Everyone was busy. Everybody was here every day. We're in the midst of managing a pandemic. There was a delay in providing the press and the public all that additional information. There was a delay.
“What did we learn from this entire situation? What are we still learning? There are hospitals that perform well and there are hospitals that perform less well. We still see hospitals performing less well. When you look at those vaccination numbers, hospitals with the same demographics of workforce in the same region with different vaccination rates of their staff, that's (indicative) of performance of those hospitals. There are nursing homes that performed well, and there are nursing homes that did not perform as well. We have to learn from it, and we have to correct it before we have another surge and another pandemic – and, by the way, we're going to have another pandemic. As I sit here, I would plan on it. And yes, this was never seen before; and yes, hospitals had to deal with something they never had seen before; and yes, nursing homes had to deal with something they had never seen before – but they will see it again. And now we have to learn from it before it happens again.
“Our focus, I believe, is going to be on the for-profit nursing homes, low-performing hospitals, but also for-profit nursing homes. I have long believed that there's a tension in a for-profit nursing home because those institutions are trying to make money. If you're trying to make profit, it's too easy to sacrifice patient care. Everything becomes one or 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? Do you want to buy new equipment, new beds, new sheets, new furniture, invest in the facility, 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. Let's learn these lessons. We have to implement hospital reform and nursing home reform and we have to do it in this budget cycle. COVID isn't done with us, implement the lessons now and we're going to propose them in the 30-day amendments.
“If you're a for-profit nursing home I believe it should be mandated, how much you put back into the facility and how much profit you can make. I believe that. Hospitals that have these issues, they have to improve, and we have to take it into consideration when there's a surge. If there is an influx into hospitals, not all hospitals can handle it equally. And that's why you saw some hospitals fail.
“If you could do it all over again, just rewind the tape: I understand the public had many questions and concerns and the press had many questions about nursing homes primarily, and I understand that they were not answered quickly enough, and they should have been prioritized and those requests prioritized sooner. I believe that. I understand the reasons. I understand that there was a lot going on. Everybody was working 24 hours a day. Everybody was overwhelmed. We were in the midst of dealing with the pandemic and trying to save lives. They were answering DOJ and nursing homes and the hospitals were also in the middle of Hell, and in the middle of a pandemic. And they were scrambling, and they were managing the crisis. I understand all of that. But the void we created by not providing information was filled with skepticism, and cynicism, and conspiracy theories which furthered the confusion.
“Nature abhors a vacuum – so does the political system. If you don't provide information, something will provide the information. Most of all, the void we created allowed for disinformation and that created more anxieties for the families of loved ones. I've had hundreds of conversations. People couldn't get into the facility to see their loved one; they couldn't get them on the phone; they couldn't get staff on the phone to get answers. They were powerless. They were helpless. They were literally and physically removed and isolated. Loved ones died alone. Loved ones died alone. Fathers, mothers, brothers, sisters died alone. It was horrific. It was horrific and then the void in information that we created started misinformation, disinformation, conspiracy theories and now people have to hear that, and they don't know what the truth is.
Gov. Andrew Cuomo. (Photo by Darren McGee/Office of Gov. Andrew M. Cuomo)
“The truth is everybody did everything they could. The truth is you had the best medical professionals and advice on the globe. The truth is, it was in the middle of a terrible pandemic. The truth is COVID attacks senior citizens. The truth is, with all we know, people still die in nursing homes today. People still die every day. We're testing the staff twice a week, there's no visitation, and people still die. You would have to hermetically seal a nursing home – they actually tried this in France – where the staff lived in the nursing home. Anybody can bring it in. A delivery man brings it in; the heating repairman brings it in; the food service brings it in. A staff person goes home, meets with their family, someone in their family has it, the staff member comes back, they bring it in. Even when you're testing twice a week, you'll get people who have it, and you'll miss them twice a week. That is the reality. But, not providing the information creates a void.
“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.
“There is no good answer when you lose a loved one. I lost my father years ago. I still go through it over and over and over again. ‘What should I have done? What could I have done? What should I have said to the doctor?’ I probably always will. The last thing I wanted to do was to aggravate that for anyone.”
New York State Senate Republican Leader Rob Ortt said, “Gov. Cuomo’s failure to apologize this afternoon was a shocking slap in the face to the New Yorkers who have lost loved ones to COVID-19. His inability to take blame for the hurt inflicted on our families by his administration’s relentless disinformation campaign is wrong on every level.
“The governor seems incapable of comprehending that it was his administration at fault, and nobody else. He continues to shift the blame anywhere but upon himself and his top officials.
“The governor’s major excuse for the failure of his administration to provide accurate, timely information to the public was, ‘We were busy.’ 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.
“To be clear, the Senate Republicans were never notified by the governor’s administration regarding the Department of Justice request. People want the truth and the only way that can be provided is through investigations by the Department of Justice and the attorney general. We know this even more now because Senate Democrats have shown they were willing partners in the lies and the coverup. For the thousands of New Yorkers who lost a cherished loved one in a nursing home, for those who can’t get a vaccine because of this governor’s tight-fisted-yet-incompetent administration of vaccines, and for the professionals who felt compelled to resign from a Department of Health driven not by science but by politics, justice must be served.”
Stephen Hanse, president and CEO of the New York State Health Facilities Association and the New York State Center for Assisted Living (NYSHFA/NYSCAL), said, “When it comes to the COVID-19 pandemic, one thing is consistent: Politicians are placing blame for the effects of the virus at the feet of other politicians, policymakers and providers, but nobody is focusing blame for the consequences of the virus where it truly belongs: with the virus itself, the state’s ‘hospital-centric’ approach to combatting the virus and historic underfunding of long-term care.
“At the onset of the pandemic, the state failed to immediately focus fully on the needs of nursing homes and instead implemented a ‘hospital-centric’ approach that led to limited access to testing, extensive staffing and PPE shortages in nursing homes.
“The COVID-19 virus first appeared in the United States at a nursing home in Washington state with devastating consequences. New York disregarded this fact and implemented a ‘hospital-centric’ approach to combatting the virus instead of looking at the people who were most susceptible to the COVID-19 virus – namely nursing home residents.”
“New York’s ‘hospital-centric’ approach focused the state’s limited resources on hospital-based solutions such as the Javits Center and the USS Comfort that ultimately proved to be ill-advised while nursing homes throughout New York were left scrambling to safeguard their residents and staff.
“Almost 80% of New York’s nursing home resident care is paid for by Medicaid. The state has cut Medicaid reimbursement to nursing homes for over 12 years in a row – creating a reimbursement void that was only exacerbated by the state’s primary focus on hospitals throughout the pandemic!
“The statewide average cost of providing around-the-clock nursing home care is $266. However, the statewide average Medicaid reimbursement for 24-hour care is $211, resulting in nursing homes being reimbursed $8.79 per hour to care for our most vulnerable! Most folks pay their babysitter more than $8.79 per hour!
“Policymakers and legislators must stop the blame game, work in partnership with nursing home providers and view long-term care as an investment not an expense. Nursing homes are highly regulated providers that are essential in ensuring critical care to the state’s most vulnerable residents.”
Republican Congressman Chris Jacobs said, “I commend Senate Minority Leader Ortt and the entire minority conference for their tireless pursuit of the truth and their repeated calls for a full investigation. Attorney General James showed courage by releasing the report that has finally gotten grieving New York families closer to closure, but her work is not done yet. With the admission from the governor’s top aide that the administration purposefully withheld information about nursing home deaths from federal officials, Attorney General James should continue her efforts and expand the scope of her investigation.
“The Governor once again tried to shift blame and avoid responsibility in his press conference yesterday, only to be met with a loud and public rebuke from members of his own party. He has proven he is not able to tell the truth or govern responsibly – as such, I am also reaffirming my calls for the Department of Justice to conduct a full criminal investigation into obstruction of justice. The governor and his staff must be held accountable.
Jacobs has sent two letters, with the entire New York Republican congressional delegation, to the Department of Justice asking for a full and independent federal investigation into Cuomo, Zucker, and administration staff.
New York State Health Commissioner Dr. Howard Zucker. (Photo by Darren McGee/Office of Gov. Andrew M. Cuomo)
On Jan. 28, Attorney General Letitia James released a report on her office’s ongoing investigations into nursing homes’ responses to the COVID-19 pandemic. Since March, James had been investigating nursing homes throughout New York based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees.
Among those findings were that a larger number of nursing home residents died from COVID-19 than the New York State Department of Health’s published nursing home data reflected and may have been undercounted by as much as 50%. The investigations also revealed nursing homes’ lack of compliance with infection control protocols put residents at increased risk of harm, and facilities that had lower prepandemic staffing ratings had higher COVID-19 fatality rates. Based on these findings and subsequent investigation, James is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.
“As the pandemic and our investigations continue, it is imperative that we understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate,” James said. “While we cannot bring back the individuals we lost to this crisis, this report seeks to offer transparency that the public deserves and to spur increased action to protect our most vulnerable residents. Nursing homes residents and workers deserve to live and work in safe environments, and I will continue to work hard to safeguard this basic right during this precarious time.”
At that time, New York State Health Commissioner Dr. Howard Zucker issued the following statement in response to James’ investigation on nursing home coronavirus data:
“The New York State Office of the Attorney General report is clear that there was no undercount of the total death toll from this once-in-a-century pandemic. The OAG affirms that the total number of deaths in hospitals and nursing homes is full and accurate. New York State Department of Health has always publicly reported the number of fatalities within hospitals irrespective of the residence of the patient, and separately reported the number of fatalities within nursing home facilities and has been clear about the nature of that reporting. Indeed, the OAG acknowledges in a footnote on page 71 that DOH was always clear that the data on its website pertains to in-facility fatalities and does not include deaths outside of a facility. The word ‘undercount’ implies there are more total fatalities than have been reported; this is factually wrong. In fact, the OAG report itself repudiates the suggestion that there was any ‘undercount’ of the total death number.
“The OAG's report is only referring to the count of people who were in nursing homes but transferred to hospitals and later died. The OAG suggests that all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals. That does not in any way change the total count of deaths but is instead a question of allocating the number of deaths between hospitals and nursing homes. DOH has consistently made clear that our numbers are reported based on the place of death. DOH does not disagree that the number of people transferred from a nursing home to a hospital is an important data point, and is in the midst of auditing this data from nursing homes. As the OAG report states, reporting from nursing homes is inconsistent and often inaccurate.”
In the wake of a New York Post story, Secretary to the Governor Melissa DeRosa released the following statement Friday regarding comments made during a Zoom conference call with state legislators:
"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."
Her press release included a timeline of events leading up to the Department of Justice's inquiry to Democratic governors regarding nursing home facilities.