After insisting his administration had done nothing wrong last week, Governor Andrew Cuomo, on Monday, did not directly apologize for a lack of transparency surrounding the record-keeping of COVID deaths in nursing homes during the pandemic. Instead, he admitted that his administration made a “mistake” by not being transparent about the deaths, which created a “void” that was “filled with skepticism, and cynicism, and conspiracy theories which furthered the confusion.”
While Cuomo said that he took “responsibility for that” lack of transparency, he denied allegations that his administration orchestrated a cover-up surrounding deaths in nursing homes from the coronavirus.
Though the Cuomo administration’s reporting of nursing-home deaths has been a point of political contention for months, it became a full-blown scandal on Thursday night when the New York Post published the details of a virtual private meeting held Wednesday between secretary to the governor Melissa DeRosa and several Democratic state lawmakers. In a leaked recording of the meeting, DeRosa, who is Cuomo’s chief of staff and the most powerful non-elected official in the state, apologized to the lawmakers for the administration’s handling of the nursing-home data and the collateral political damage it has caused them. She explained that part of the reason the Cuomo administration didn’t promptly supply the lawmakers with the revised death total numbers they requested last August was because the administration “froze” amid efforts by the Trump administration to target Cuomo and New York over the data.
Earlier that month, lawmakers had sent letters to the Cuomo administration after health commissioner Dr. Howard Zucker failed to disclose how many residents of long-term health-care facilities had died after being transferred outside those facilities. The requests for a revised total went unfulfilled for months. Then two weeks ago, Attorney General Letitia James’s office released a damning report indicating the state’s Department of Health had undercounted the number of COVID deaths among residents of long-term care facilities by as much as 50 percent — with deaths that occurred outside the facilities accounting for the disparity. The Cuomo administration quickly released a revised total including more than 3,800 additional nursing-home deaths. Another round of state data, released this week after the Cuomo administration lost a freedom-of-information lawsuit, indicates that roughly 15,000 long-term care and assisted-living facility residents in New York State have died from the coronavirus during the pandemic.
During Wednesday’s private meeting, DeRosa was asked to explain the administration’s failure to supply the data to lawmakers last summer when they asked for it. As part of her apology for leaving the lawmakers in a politically vulnerable position, DeRosa replied that the fear of a politically motivated Justice Department investigation was a major reason:
I don’t know that this is going to satisfy you, but it’s the truth and the truth works almost every time. The letter comes in at the end ofAugust and right around the same time, President Trump turns this into a giant political football. He starts tweeting that we killed everyone in nursing homes, he starts going after [other Democratic governors over their responses to the pandemic]. He directs the Department of Justice to do an investigation into us. He finds one person at DOJ who since has been fired because this person is now known to be a political hack who sends letters out to all of these different governors. 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 and what we start saying was going to be used against us and we weren’t sure if there was going to be an investigation. That played a very large role into this.
During the meeting on Wednesday, DeRosa went on to say that the Cuomo administration asked state lawmakers if it could delay responding to the inquiries while figuring out how to respond to the Justice Department inquiry — which ultimately did not result in an investigation. She also claimed that the requests for updated data continued to go unanswered after the DOJ situation was resolved because the administration’s “attention shifted elsewhere” as the next wave of COVID cases struck and vaccine rollout process began. She additionally chalked up the data-reporting trouble to a lack of reliable information and a general fog-of-war confusion amid the pandemic response.
In other words, the Cuomo administration apparently feared legal jeopardy — and federal persecution, if not prosecution — over the data so, at best, it slow-walked releasing it to avoid that fight. To be clear, that doesn’t necessarily mean the administration would have faced legitimate legal jeopardy over the data, but the reasoning is still, at best, an inadequate justification for a failure to be accountable and transparent about public-health data during a public-health emergency, regardless of the consequences. And DeRosa’s explanation wasn’t even a public justification — or a public apology — but offered in private to a small group of Democratic lawmakers who had been forced to defend the administration.
Former president Trump and his allies, as well as Cuomo critics including many state Republican lawmakers, have alleged that the governor’s decision last March to force the state’s nursing homes to accept COVID-positive patients discharged from hospitals led to more deaths of nursing-home residents, and that the Cuomo administration has tried to hide the higher death toll as a result. The controversial policy, which the governor rescinded in May and has falsely defended as a matter of following federal guidance, was intended to relieve pressure on overwhelmed hospitals amid the pandemic’s brutal first wave in the state. Cuomo and his administration have also downplayed the impact of the policy — which led to more than 9,000 COVID-infected patients being admitted or readmitted to long-term care facilities in the state — emphasizing that the facilities already had COVID-positive patients at the time, and claiming that asymptomatic COVID-infected health-care workers, not patients, had been the primary factor in the spread of the coronavirus at the facilities.
Health commissioner Howard Zucker has insisted that the state has never underreported coronavirus fatalities and has always been transparent about how it counted them based on where the patients died. Governor Cuomo infamously brushed off the nursing-home data disparity after the attorney general’s report came out, remarking during a January 29 press conference, “Who cares [if they] died in the hospital, died in a nursing home? They died.”
NY1 summarized Friday that the administration “has contended nursing home and long-term care facility data surrounding deaths of residents was a mess and the thousands of fatalities that occurred in different locations has been difficult to accurately reconcile into one number.” Cuomo’s office, responding to this week’s leaked meeting, gave NY1 a timeline of the events DeRosa discussed backing her account. DeRosa herself defended her private comments by reiterating them in a statement:
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. 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 a few of of the lawmakers participating in Wednesday’s meeting made it clear at the time that they were not satisfied with DeRosa’s explanation. “I don’t have enough time today to explain all the reasons why I don’t give that any credit at all,” responded Richard Gottfried, chair of the State Assembly’s health committee. Rachel May, chair of the State Senate’s aging committee, added that she was left “feeling like I needed to defend — or at least not attack — an administration that was appearing to be covering something up.”
No one outside the Cuomo administration was defending it after DeRosa’s comments leaked. “You’re only sorry that you all got caught. Because of your decisions, thousands of people died who did not have to die. We’re not ‘offended,’ Melissa, we’re furious — with extremely good reason,” Democratic state senator Alessandra Biaggi tweeted in response to the Post report. On Friday, she was one of 14 Democratic state senators who joined with Republicans to call for Cuomo’s pandemic emergency powers to be rescinded.
Politico reported Friday that while it’s not clear Cuomo’s emergency executive powers made the state’s pandemic response in nursing homes worse, efforts to revoke those powers were underway before the DeRosa comments broke:
Senate sources say leadership is much closer to limiting the governor’s authority than they have let on publicly. ”We basically had a conference on this executive-power stuff on Monday,” one source said, requesting anonymity to speak about closed-door negotiations. “Momentum was moving toward removing executive powers. The latest revelation — this almost slam-dunks that.”
Politico also spoke with an unnamed “longtime [Cuomo] administration official” who seemed confident the scandal had no substance beyond the bad optics: “It’s something that will complicate an existing political controversy, but it’s not a crime, or anything like it. It’s fodder for those who want to keep the issue alive.”
On Monday, Cuomo added: “There is nothing to investigate.”
This post has been updated to reflect Governor Cuomo’s comments on February 15.