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Nursing home mortality remains focus of FBI’s Cuomo probe

9 min read

ALBANY — Fifteen months ago, New York was becoming deluged with coronavirus cases when state health department officials received an urgent late-night call from a top administrator at a Newburgh hospital. He informed them a van had just dropped off more than 15 nursing home residents who had tested positive for COVID-19, and if more followed it could create a critical shortage of beds.

Although none of the nursing home residents clinically required hospitalization, the scene was not unique. Other nursing facility operators were also beginning to move COVID-positive residents to hospitals out of fear they could spread the illness in the assisted-living facilities.

That same month, Gov. Andrew M. Cuomo had been publicly declaring that New York would not be able to maintain enough hospital beds for coronavirus patients if infection rates continued to climb. Inside the governor’s office, that March 2020 phone call from an official at Montefiore St. Luke’s hospital in Newburgh prompted the administration to craft a hastily prepared memo that directed nursing homes to allow residents afflicted with COVID-19 to remain in or return to those facilities, even if they were being discharged from hospitals while still testing positive.

Cuomo’s office has said the caveat was that nursing homes could only accept those infected residents if they were capable of caring for them and keeping them quarantined from other residents. But the memo didn’t explicitly state that — although it noted “standard precautions must be maintained” — and it caused some confusion in the industry. Family members of nursing home residents told the Times Union last year they saw their loved ones — often over Zoom or FaceTime calls — being occasionally tended to by nursing home employees who weren’t wearing masks, and on floors where other residents were positive for the disease. (The health department’s directive was rescinded less than two months after it was issued.)

As nursing home deaths in New York began to soar in the weeks and months that followed, the administration’s data collection and reporting of those deaths became fodder for debate between Cuomo’s top aides and health department officials over how many fatalities should be counted. The reporting criteria was also changed repeatedly — at the direction of members of the governor’s coronavirus task force, according to people with knowledge of the situation.

Cuomo’s daily briefings were being aired on national cable networks at the time as he occasionally sparred with President Donald J. Trump and received accolades from many for New York’s response to the virus. But the issue of nursing home deaths sparked consternation privately among some of his top advisers about whether the state should be reporting “presumed” or “probable” nursing home deaths, especially when many other states were not.

The situation was exacerbated by the lack of COVID-19 tests in the early stages of the pandemic, which meant many nursing home officials might list that someone likely died as a result of the disease even if it had not been verified by a test.

A person with direct knowledge of the internal discussions said that Cuomo’s public persona — at a time when he was privately writing a book about his handling of the pandemic and still being discussed as a potential presidential candidate — was the Executive Chamber’s “primary concern … always.”

Another person familiar with the matter said the administration also complained to the U.S. Centers for Disease Control and Prevention that numerous other states, including Florida, were apparently not reporting presumed COVID-19 deaths in nursing homes; the data discrepancies made it appear New York had a higher number of fatalities in nursing facilities than dozens of other states.

The Cuomo administration, meanwhile, disputes that it ever reported nursing home coronavirus data to federal health officials.

Part of the issue stemmed from the CDC’s decision to not impose uniform reporting requirements on states. And New York City, which reports its fatality numbers to the CDC separately from the rest of the state, had also been reporting deaths that were presumed to be a result of COVID-19. Because New York City’s data was tallied on the state’s dashboard, the availability of those numbers had caused stress within the administration, according to officials who were involved in the discussions.

“There were people in the administration who were, like, ‘Why would we report the higher number?'” a person with knowledge of the deliberations said. “There was a lot of tense discussions.”

Stonewalled data 

Now, roughly six months into a federal criminal investigation of Cuomo’s administration that is being steered by the FBI and the U.S. attorney’s office in Brooklyn, many of the investigative interviews have focused on why the administration — under the direction of top members of the governor’s task force — had begun “stockpiling” information on people who were presumed to have died of COVID-19 in nursing homes. At one point last year, the number of unreported deaths in that category rose into the hundreds, a person briefed on the investigation said.

In early May 2020, the hiccups in the state health department’s reporting of nursing home deaths were also revealed when more than 1,600 “presumed” deaths were suddenly added to the state’s nursing home fatalities dashboard overnight on a Sunday. That increase in deaths attributed to COVID-19 pushed the number of New York nursing home deaths to more than 4,800 — a figure that would eventually top 15,000. 

The federal investigation is focused in part on current and former health department officials who were involved in the data gathering and reporting of the nursing home fatalities — and what they were directed to do by top Cuomo aides. According to interviews with people familiar with the probe, it also is examining the administration’s reporting of COVID-19 deaths to the CDC; alleged efforts to list nursing home fatalities as hospital deaths; and whether data on nursing home fatalities were deliberately withheld or delayed.

But it’s unclear whether the withholding of any data or any misrepresentation of fatality statistics was a federal crime.

Administration officials have acknowledged publicly that their data gathering, especially in the early months of the pandemic, was problematic and that there were periodic lags in the administration’s reporting of nursing home fatalities. A spokesman for the governor said they also were provided information on COVID-19 deaths at times with no supporting documentation, and in some instances deaths attributed to COVID-19 were being retroactively reported in the weeks before New York’s first confirmed case was discovered in early March 2020.

Cuomo under fire: A guide to the investigations the governor faces

“Collecting data in the early days of the pandemic was uncharted territory for everyone involved and led to some uneven reporting by the nursing homes,” said Elkan Abramowitz, a partner in the law firm hired to represent the administration in the federal probe. “As has been publicly discussed, every effort was made in good faith to verify and release the numbers in a way that was accurate and would not confuse the public.” 

The federal investigation apparently has its origins in an Aug. 26 letter to Cuomo from the Justice Department’s Civil Rights Division that sought a trove of records from the administration regarding the relatively small number of public nursing homes in New York, including “all state-issued guidance, directives, advisories, or executive orders regarding admission of persons to public nursing homes … as well as the dates each such document was in effect.”

The Justice Department had sought similar records at that time from Michigan, New Jersey and Pennsylvania, noting in a release that those states and New York — all headed by Democratic governors — had “required nursing homes to admit COVID-19 patients to their vulnerable populations, often without adequate testing.” But there is no indication that federal criminal investigations are active in those other states.

In October, the same unit of the Justice Department that wrote the August letter regarding public nursing homes sent a second written request to New York — this time to the state health department — requesting records on the state’s far more numerous private nursing homes and other long-term care facilities.

The Cuomo administration had initially attributed the inquiry to Justice Department officials with political ties to administration of President Donald J. Trump. But the investigation by the U.S. attorney’s office in the Eastern District of New York has continued even after Mark J. Lesko was appointed acting U.S. attorney in Brooklyn in March by the administration of President Joe Biden; Lesko succeeded Seth DuCharme, who had been appointed U.S. attorney in that district last summer by Attorney General William Barr.

That transition has not derailed the federal investigation and, notably, the Eastern District is continuing to devote several FBI agents, assistant U.S. attorneys and investigators with the U.S. Department of Health and Human Services to the probe. Given those resources, people familiar with federal investigations and with knowledge of the case said they do not believe politics are influencing the direction of the case.

Probe continues 

By late August, after months of grappling with handling “presumed” and “probable” COVID-19 deaths, state health Commissioner Howard Zucker issued new regulations mandating that “confirmatory COVID-19 and influenza testing” would be required any time a hospital patient or nursing home resident was suspected to have died of either disease. By then, testing capabilities had improved and practitioners and nursing home operators were no longer allowed to list suspected COVID-19 deaths.

“This process will ensure integrity in data reporting as the state continues its COVID-19 pandemic response and as we prepare for another flu season,” the announcement stated. Zucker added in a statement that “these regulations will ensure we have the most accurate death data possible.”

Five months later, an investigation by the state attorney general’s office found — in a report issued Jan. 28 — that the state had sharply underreported nursing home fatalities by more than 50 percent. The attorney general’s investigation, which examined reporting data from 62 of the state’s more than 600 nursing homes, concluded “a significantly higher number of resident COVID-19 deaths can be identified than is reflected in the deaths publicized by (the state health department).”

The Cuomo administration has declined to release its correspondence with the Justice Department. It is, however, known that those exchanges included a Sept. 9 letter that was signed by a state Department of Health attorney in response to the federal agency’s Aug. 26 demand letter. 

That secrecy has also prompted tumultuous exchanges between Cuomo’s office and the Legislature, which had requested similar records since last August.

On Feb. 10, Secretary to the Governor Melissa DeRosa and other administration members met in secret with key Democratic lawmakers in the Legislature, and DeRosa acknowledged they had withheld releasing full data on COVID-19 deaths in nursing homes because of their concerns about the Justice Department inquiries.

The federal investigation is examining whether anyone was directed to manipulate or change data, including the possibility it was altered to benefit the governor’s public profile, or whether the administration may have knowingly provided erroneous data or information to any federal agencies, including the CDC.

At a news conference on Feb. 19, Cuomo said his administration had provided “truthful information” to the Justice Department and that it “is a lie to say any numbers were inaccurate.”

During that same news conference, Cuomo also had sought to explain why his administration had withheld information from the Legislature and the public. 

“We said we would pause the state Legislature’s request because we gave (the Department of Justice) precedence — true,” he said. “Well, some were offended that they weren’t given precedence. I understand they are offended. … I’ve spoken to the legislative leaders and we agree that we’re in the midst of dealing with a real pandemic.”

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