“That’s a problem, bro.”

So said New York State Senator Gustavo Rivera (D) to New York Health Commissioner Howard Zucker during Zucker’s testimony in a legislative hearing in early August. The hearing was concerning the deaths of elderly nursing home residents from the Wuhan virus in New York state. 

A controversy has arisen over the state’s counting of those deaths. New York was the only state in the country that, when reporting the number of deaths among nursing home residents, only included residents who were physically in their nursing home at the time of death; New York did not include residents who were suffering from the virus, sent to a hospital and then died from the virus while in the hospital.

This method of accounting for nursing home residents’ deaths has raised eyebrows across the country. 

An August 11^th Associated Press report (the title says it all: “New York’s true nursing home death toll cloaked in secrecy”) states that there are slightly over 6,600 deaths of New York nursing home residents attributable to the virus. That amounts to approximately 20% of Wuhan virus deaths in the state. The AP details several instances in which Governor Cuomo has favorably compared New York’s performance re: nursing home deaths to nearby states, also with high rates of virus deaths. Other states put the percentage of nursing home deaths at 68% (Pennsylvania), 64% (Massachusetts) and 44% (New Jersey). 

However, the nursing home accounting issue pales in comparison to another emerging problem for the Cuomo administration. On March 25^th the state health department issued an order requiring nursing homes to accept elderly patients recovering from the virus and being discharged from the hospital. Not only were they ordered to accept the patients, the nursing homes were barred from testing the patients to see if they still had the virus. The March 25th order has drawn further scrutiny from Democratic and Republican legislators alike, as well as the Department of Justice.  

It was only after sustained complaints from family members of nursing home patients and other negative publicity that Governor Cuomo rescinded the order on May 10^th. 

The August 11^th AP story indicates that 6,300 patients were discharged into nursing homes before the March 25^th ordered was rescinded. The Cuomo administration contends that any spike in nursing home deaths that occurred after the issuance of the March 25^th order was due to asymptomatic nursing home workers who spread the virus among elderly residents. The health department released an internal report that supports that very position. However, according to the AP, that report has been criticized by epidemiologists and academics as flawed. 

Hence, the legislative hearings. Senator Rivera followed the “problem” comment related in the title of this post by saying that “[i]t seems, sir, that in this case you are choosing to define it differently so you can look better.” At one point, Zucker was asked how many nursing home residents died while in hospitals. Although the health department did keep track of those deaths, he refused to provide that figure, or even an estimate of the number of hospital deaths, stating that they were double checking the numbers and he wanted to be sure any figures he released were accurate. 

Commissioner Zucker promised the legislators to release the number of hospital deaths when the figures were confirmed. However, as of the date of this post, the health department has not released that number. 

That may change.

There is now a bipartisan bill pending in the New York legislature calling for an independent commission to investigate nursing home deaths in the state. 

Also, on August 26^th the Civil Rights Division of the Justice Department sent letter requests to Governor Cuomo and the Democratic governors of three other states (Michigan, New Jersey and Pennsylvania) seeking records regarding Wuhan virus deaths among nursing home residents. The other three states had issued orders similar to New York’s March 25^th order. 

The Justice Department indicated that it was seeking to determine “if the state orders regarding admission of COVID-19 patients to nursing homes is [sic] responsible for the deaths of nursing home residents.” 

The letter request to Governor Cuomo specifically asks for the number of nursing home residents who died of the virus after being transferred to a hospital or other medical facility.

Governor Cuomo has defended the March 25^th order on the grounds that at that time medical professionals were expecting a wave of infected people needing hospital care. The March 25^th order was an effort to free up hospital beds for that anticipated wave. 

We now know that wave of virus victims never happened. But, and I say this as no fan of Governor Cuomo, back in March (which seems sooooo long ago now) who knew how bad this “thing” was going to be? Or not be? Didn’t almost everyone back then believe that hospitals were about to be inundated with Wuhan virus patients?

I don’t fault Governor Cuomo and the other governors for seeking to free up hospital beds. However, the problem with the orders is that infected residents were being sent to facilities that were not equipped to handle Wuhan virus carriers and segregate them from other nursing home residents. This may be the most significant legal exposure to the states since, at the time, the federal government health authorities issued guide lines saying that infected patients should only be sent to nursing homes capable of caring for them.  Moreover, at least in New York’s case, nursing homes were forbidden from testing these returning residents for the virus. That rule seems inexplicable; why would the Cuomo administration effectively put blindfolds on nursing home administrators and staff as they cared for possible Wuhan virus carriers?

Governor Cuomo seems to be a little defensive on this topic. He should be. 

This entire situation brings back memories. Remember the Moreland Commission? In 2013 Governor Cuomo empaneled the commission under a 1907 law to investigate public corruption. Among rumors of his staff interfering with the commission, Governor Cuomo abruptly disbanded the commission in March 2014 in return for the passage of a new state ethics bill. The then United States Attorney for the Southern District of New York, Preet Bharara, almost immediately seized all of the commission’s files. 

In an interview with Crain’s editorial board around this time, Governor Cuomo, ever the humble public servant, said: “The Moreland Commission was my commission. It’s my commission… I can appoint it, I can disband it … It’s my commission. I can’t ‘interfere’ with it because it is mine. It is controlled by me.” 

Bharara ultimately indicted, tried and convicted Sheldon Silver (D) and Dean Skelos (R), two of the three most powerful New York state politicians at the time (Governor Cuomo being the third).

Bharara announced in January 2016 that he was closing his investigation of the circumstances surrounding the disbanding of the commission and found no evidence of criminal conduct by the Cuomo administration. 

The current Justice Department investigation of this nursing home fiasco in New York and the other states is a civil matter, not criminal. Still, if the DOJ finds that the March 25^th order resulted in the unnecessary deaths of elderly nursing home residents, how will Governor Cuomo handle that during his 2024 presidential campaign? Will he have to update his book? 

It’s always the cover-up that catches these politicians, isn’t it?

UPDATE: October 3, 2020

According to the New York Post, Governor Cuomo is still peddling lies about the Wuhan virus/nursing home fiasco he created.

UPDATE: November 1, 2020

Bad news for Governor Cuomo. The Department of Justice is not going away.

UPDATE: January 29, 2021

Now we know why Cuomo hid the numbers