Andrew Cuomo‘s top aide admitted that New York’s laws around nursing homes are too lenient, as she sought to fend off criticism of the governor’s handling of a scandal surrounding deaths from COVID-19 in the care facilities.
Melissa DeRosa, the secretary to the governor, unleashed a political firestorm when she admitted, in a call to state Democrats last week, that the administration had deliberately dragged their heels on releasing data.
State Democrats sought information on deaths from COVID among nursing home residents. DeRosa, in the call obtained by The New York Post and released on Thursday, confessed that they ‘froze’ when asked for the information, because they were concerned the Justice Department may be gunning for them.
DeRosa, pictured with Cuomo in January 2017, said laws on nursing homes were insufficient
Andrew Cuomo, governor of New York, was in the Oval Office on Friday to discuss COVID relief
Left to right: Cuomo, Kamala Harris, Joe Biden and Gov Michelle Lujan Grisham of New Mexico
On Sunday the newspaper released further detail from the conversation with the state Democrats, which showed DeRosa accepting that the laws concerning nursing homes were insufficient.
Cuomo released a book about his handling of the pandemic and he also won an Emmy for his daily TV briefings
Cuomo, governor of New York since 2010, is facing calls to resign and even be prosecuted over the scandal surrounding deaths from COVID among nursing home residents.
‘I think a lot of these nursing homes, frankly, retrospectively, even prior to COVID have been getting away with a lot for a lot of years,’ said DeRosa, when asked by a Democratic assemblyman, Ron Kim – whose uncle is presumed to have died of the coronavirus in a nursing home – about measures to hold ‘the bad actors accountable’ and bring ‘retroactive justice’ against facilities that mixed COVID-positive residents with others.
‘I think that if there is any evidence that anyone was willful, or anyone was negligent in a way that goes beyond the normal course that costs people’s lives, I think that we all share the same goal, which is to hold them accountable,’ said DeRosa.
At least 15,000 nursing home residents are now known to have died of COVID-19 in New York
A nursing home patient is pictured being vaccinated against COVID on January 6 in Brooklyn
Beth Garvey, Cuomo’s counsel, then admitted that nursing homes had not been punished for mixing COVID-positive patients with other residents.
Cuomo’s pandemic: A timeline of the governor’s response to the COVID-19 crisis
MARCH 1: Female nurse, 39, returning from Iran becomes the first in New York to test positive for COVID-19.
MARCH 2: Cuomo gives the first of 111 consecutive daily televised briefings for New Yorkers
MARCH 13: Donald Trump declares national emergency.
MARCH 14: An 82-year-old woman with emphysema is announced as the first patient to die from the virus.
MARCH 17: New York City mayor Bill de Blasio says city should follow San Francisco with a shelter-in-place order; Cuomo says it will be statewide.
MARCH 19: California Governor Gavin Newsom issues first statewide lockdown order
MARCH 22: Cuomo signs statewide stay-at-home order.
MARCH 25: Cuomo orders that nursing homes accept convalescent COVID patients back into their facilities.
MAY 10: The nursing home ruling is reversed, to insist on a negative COVID test before return to a nursing home. By now, more than 9,000 people have returned to nursing homes.
AUGUST: Questions begin to be asked about the nursing home policy.
AUGUST 26: Department of Justice opens an investigation into New York’s nursing homes and COVID policy.
OCTOBER 13: Cuomo publishes American Crisis: Leadership Lessons from the COVID-19 Pandemic.
OCTOBER 21: Cuomo announced a policy of isolating identified ‘micro clusters’ of COVID cases.
NOVEMBER 20: Cuomo wins an Emmy ‘in recognition of his leadership during the Covid-19 pandemic and his masterful use of television to inform and calm people around the world’.
JANUARY 28: Attorney General Letitia James released a report finding that New York under-reported the number of deaths among nursing home patients by around 50 per cent, with 15,000 actually dying – not the 8,500 reported.
FEBRUARY 11: Melissa DeRosa, Cuomo’s secretary, admits that in August they ‘froze’ when asked for nursing home data, and dragged their heels on releasing it. The AP reports that more than 9,000 people were returned to nursing homes to recover from COVID in the period March 25-May 10, a figure 40 per cent higher than the official tally.
‘It has not happened,’ said Garvey.
‘We have significant due process, obviously, for those operators that we have to go through and hearings. So those are still ongoing.’
She said no nursing homes had been placed into receivership.
‘We do not have at this juncture, you know, any receivers appointed right now,’ she said.
Between the start of the pandemic and February 4 the state Department of Health has conducted 2,284 infection control inspections in nursing homes, and issued 170 violations.
Those 170 violations have resulted in $1.3 million in fines, with state fines capped at $10,000 each.
‘Ten thousand dollars is really the maximum that we can assess for a violation, even a willful violation of a public health law,’ said Garvey.
DeRosa added: ‘I think that that’s something we should revisit, I think then we should be increasing the penalties. I’m not suggesting we shouldn’t have due process. But if there is a way that we can change the law where we can expedite some of this, we should do it.’
Richard Mollot, head of the nursing home residents’ advocacy group Long Term Care Community Coalition, told the paper that Cuomo’s aides correctly identified a problem, but were wrong to say it was the fault of the existing rules.
‘The governor and Department of Health do not need to wait for the legislature,’ said Mollot.
‘They can provide immediate relief to residents and families by improving enforcement of minimum standards, releasing guidance to allow every resident to designate a visitor, and opening communications with resident advocates.’
Cuomo’s spokesman, Rich Azzopardi, said on Sunday: ‘Legislators seemed to agree with us that the fines were too low and new actions are needed to further protect patients in these facilities and there was a commitment further discuss these vital changes.’
Cuomo’s decision on March 25 to order nursing homes to readmit convalescing COVID residents, to free up hospital space, has been widely criticized.
He rescinded the order on May 10, but by then 9,000 people had returned to their nursing facilities.
In August questions began to be asked, both by state politicians and by the Justice Department.
DeRosa admitted in the call that they ‘froze’ when questioned, and were not forthcoming with data.
At the end of January the New York state attorney, Letitia James, revealed that Cuomo’s administration had undercounted the number of deaths from COVID among nursing home patients by almost half, with 15,000 residents having died but their deaths being recorded as hospital deaths, not nursing home deaths.
Cuomo, asked about the data discrepancy, replied: ‘Who cares where they died,’ arguing that the sad fact remained that they had died – regardless of whether it was in a hospital or in a nursing home.
Relatives of victims were outraged at his comment, which was taken as a proof by critics of a callous and cavalier approach.
Cuomo himself was at the White House on Friday, to meet Joe Biden and discuss COVID relief.
He has not addressed the controversy, turning down requests to appear on cable news shows and comment on the growing scandal.
READ THE TRANSCRIPT OF MELISSA DEROSA’S ZOOM CALL WITH STATE DEMOCRATS
Senator Skoufis: Commissioner, I’m speaking more generally than just that one question. The Senate letter that we sent had, I think, 17 questions. I think there was an Assembly letter with many questions. So, yes, there is a question of what the data and the audit, and you’re not going to convince me that you could not have done this audit faster than 6 months’ time. I believe you started the audit a few weeks ago when this all started to bubble over. But I’m speaking more generally than just the nursing home death question.
Melissa DeRosa: Senator, I can take this question. 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 of August 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 Murphy, starts going after Newsom, starts going after Gretchen Whitmer.
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. And 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, what we start saying was going to be used against us while we weren’t sure if there was going to be an investigation.
That played a very large role into this. We went to the leaders and we said to the leaders, can we please pause on getting back to everybody until we get through this period and we know what’s what with the DOJ. We since have come through that period. All signs point to, they are not looking at this. They dropped it. They never formally opened an investigation. They sent a letter asking a number of questions and then we satisfied those questions and it appears that they’re gone. But that was how it was happening back in August.
In the intervening period, the second wave happened. The vaccine rollout started and all of our attention shifted elsewhere. And I know that’s not the answer you want to hear and you guys should be the only priority that we have as we’re moving through this –
Senator Skoufis: I’m not suggesting that —
Melissa DeRosa: No, no, no – I’m sorry, I didn’t mean that to be snarky. I’m saying this sincerely – and I’ve communicated this to Shontell and Louann – I want to make you guys more a partnership. I want to answer your questions on a rolling basis. I offered to do something weekly or bi-weekly so you guys get questions on a more often time and we can have a candid conversation where it doesn’t feel like everyone is sniping at each other through the press and it isn’t really about the policy and it isn’t really about the information, it’s about this political back and forth.
So, that is what happened. On the audit, I mean, now that I am knee deep in this and I understand all of this. On April 17, and we don’t need to get too far on a tangent, but just so you guys understand part of all this. On April 17, DOH sent out a notification to all of the nursing homes it regulates and says prospectively, tell us anyone that died in the facility, anyone you think died of COVID in the facility – like presumed, but presumed has a medical context and definition – but just saying presumed. And the nursing homes took that to mean I’m going to look backward and guess, essentially, that you believe was confirmed COVID in a hospital and that you think was presumed in a hospital.
All of a sudden, at the end of April, you get a massive data dump from 600 nursing homes where they’re reporting back to January and saying presumed COVID. And DOH, in the middle of what was still the height of the pandemic, while we were scrambling on a daily basis to make sure that hospitals weren’t overwhelmed and collapsing, when we were trying to make sure that people were getting the care that they needed, when we were still making major decisions about what sectors of the economy would be safe to reopen or close, when there was still massive PPE shortages and while we were being shot at on a daily basis from Donald Trump – that we needed to go through these reams of data. It’s 14,000 people. Then it wasn’t 14,000, it was like 6,000 or whatever the number was.
And none of it was reliable. It was based on initials. It was based on the data that they thought they died in the hospital because they didn’t know for sure. It was based on co-morbidities that the list of the co-morbidities are pneumonia, cancer, HIV/AIDS – all these things and they’re guessing that because it was around that time, maybe it was COVID. This was a massive undertaking and it was happening while we were still at the height of the pandemic. That’s when that data dump happened.
So, I’m just asking for a little bit of appreciation of the context. Your point is very well taken, Senator, and we are going to do better and you have my promise that we’re going to try to do better on a rolling basis, ongoing basis, to answer you guys. If it means Shontell or Louann arrange one-offs or Zooms or phone calls or weekly meetings, or whatever – I’m open to it.
So, we do apologize. I do understand the position that you were put in. I know that it is not fair. It was not our intent to put you in that political position with the Republicans.