Capital Region

Feds seek data on NY COVID nursing home deaths, may launch civil rights probe

Gov. Andrew Cuomo - Credit: Governor's Office

Gov. Andrew Cuomo - Credit: Governor's Office

ALBANY — The federal government is seeking data on COVID nursing homes deaths in New York and three other states as a precursor to a potential civil rights investigation.

The U.S. Department of Justice issued (and publicized) its requests to the four Democratic governors on Wednesday, hours before the Republican National Convention would continue the drumbeat for re-election of Republican President Donald Trump.

Also Wednesday, New York Gov. Andrew Cuomo, a Democrat and an inveterate Trump critic, fired off two attacks of his own at the Trump administration, calling out the Centers for Disease control as a political puppet whose guidance shouldn’t be trusted and decrying two top Department of Homeland Security officials as “thugs” who should be investigated, not promoted to higher leadership roles.

COVID has run rampant through elder-care facilities in New York. More than 6,000 nursing home residents have died of the virus. The state doesn’t know or won’t say exactly how many more.

That death toll, and Cuomo administration policies in place as it mounted, have become a leading point of criticism of a governor who has also been hailed for leading a sweeping turnaround in the state with the first and worst COVID crisis in the nation.

On Wednesday, the Department of Justice requested Michigan, New Jersey, New York and Pennsylvania provide within 14 days COVID statistics for each public nursing home within their borders.

The four states are all among the hardest hit by the pandemic. New York and New Jersey have the highest and second highest COVID death tolls among the 50 states; Pennsylvania and Michigan are ninth and 10th.

The Civil Rights Division of the U.S. Department of Justice is considering whether to open a Civil Rights of Institutionalized Persons Act investigation of institutions in New York.

To make this decision, it seeks data from each state on every nursing home, including number of residents, employees and visitors who contracted COVID, regardless of where they contracted it; the number who died, regardless of location of death; text of all state-issued guidance orders and directives regarding admission to nursing homes; and number of known COVID-positive persons admitted to the nursing home.

These last two points are at the heart of the criticism that has been lobbed at the Cuomo administration: It ordered on March 25 that nursing homes not deny admission based on COVID status and ordered on May 10 that hospitals not discharge COVID-positive patients to nursing homes. The administration has said the March 25 order followed federal policy and the May 10 order did not contradict it. Critics say the March 24 order was a disaster on its face and May 10 was a reversal that proves the administration knew it was wrong.

Cuomo and Michigan Gov. Gretchen Whitmer issued a joint statement Wednesday on the Department of Justice request:

“This is nothing more than a transparent politicization of the Department of Justice in the middle of the Republican National Convention. It’s no coincidence the moment the Trump administration is caught weakening the CDC’s COVID-19 testing guidelines to artificially lower the number of positive cases, they launched this nakedly partisan deflection. At least 14 states — including Kentucky, Utah and Arizona — have issued similar nursing home guidance all based on federal guidelines and yet the four states listed in the DOJ’s request have a Democratic governor. DOJ should send a letter to CMS and CDC since the state’s advisories were modeled after their guidance.”

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A bipartisan duo of Schenectady-area legislators has long been pressing (with no success and little tangible progress) for the same thing the feds are seeking now: A full and accurate picture of what went wrong in New York nursing homes and why, so that it can be prevented from recurring if COVID flares back up or when the inevitable successor crisis arises.

Legislative hearings earlier this month did not provide that, they say. So they’ve introduced Senate and Assembly measures to perform an independent review. Leadership of both houses has been slow to embrace such a move.

State Sen. James Tedisco, R-Glenville, said it was embarrassing that the federal government needs to step in to obtain data New York health-care providers and regulators won’t provide.

He said: “The governor and state Health Commissioner Zucker sat next to each other every day for nearly six months during the COVID-19 crisis saying that we should ‘follow the science.’  To follow the science, we need unbiased facts and figures, regardless of whether that data could be potentially embarrassing to the Cuomo Administration.”

Assemblyman Angelo Santabarbara, D-Rotterdam, said: “We owe it to the people of this state to get answers and determine what transpired, both as a means to hold bad actors accountable as well as learn what worked and what didn’t work in preparation for the next public health crisis.”

He didn’t have an opinion on whether a federal investigation would have better chances of success.

“This is data we’ve been asking for since April,” Santabarbara said. “This is not something new.”

Cuomo’s latest criticism of the Centers for Disease Control stems from its guidance Tuesday — a reversal of past CDC advice — that people who have been in close contact with a COVID-positive person need not be tested for COVID infection themselves, in many cases.

Cuomo suggested this directive is an attempt to lower the new-case count to make it appear the pandemic is on the wane in the United States and boost Trump’s standing.

“He now has CDC carrying forward his political agenda and it is frightening and it is alarming,” Cuomo said in a conference call with reporters. “Shame on the people in the CDC. These will be indefensible actions in the light of history.”

Cuomo said the state won’t follow the CDC guidance on testing and suggested others not follow it, either.

“They have been wrong more than they’ve been right,” he said. “We know that they’ve been bullied by the president.”

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