With study of New York State response to COVID-19 overdue, lawmakers eye new commission

ALBANY — A $4.3 million study of the state’s response to the COVID-19 pandemic continues under a hired consultant, but the evaluation Gov. Kathy Hochul called for in May 2022 still has no due date.

Now, the State Legislature is proposing what it calls an independent and public study by a commission of experts with a tool the consultant doesn’t have — subpoena power.

Even if the legislature’s proposal overcomes some political hurdles, a commission would be months away. The result is that there is still no analysis of the state’s COVID-19 disaster emergency, which was declared on March 7, 2020, and expired June 23, 2021. The pandemic took the lives of about 80,000 New Yorkers.

“We have a grave responsibility to assess what went wrong in our state's response to COVID-19 and how to prevent another public health crisis from metastasizing,” said Sen. Julia Salazar (D-Brooklyn), sponsor of legislation to establish the independent commission to review the state's handling of the pandemic.

The need for a study to learn from the pandemic response and prepare for the next major disaster is clear, those inside and outside of government said.

“History deserves to have a true record of what happened here,” Hochul said in May 2022. “And I want an outside look at it,” she said of the state’s response, most of which was directed by former Gov. Andrew M. Cuomo. “It is not to cast aspersions, blame, criticism; it's just to give a real analysis of what this state went through for over two years, but particularly early on.”

Among the questions expected to be examined is the capacity for hospitals to handle a pandemic; the effectiveness of orders to wear masks, get vaccines and reduce crowds at workplaces and businesses; the impact of the economic shutdown and closing schools during the height of the pandemic, and why the state’s stockpile of protective equipment was insufficient.

State has spent $1.1M on study

A study is also expected to examine the March 25, 2020, guidance by the Cuomo administration to nursing homes to accept COVID-19 patients in recovery from hospitals. A 2021 state Bar Association report called the guidance “unreasonable” and concluded that it contributed to deaths in nursing homes.

The consultant Hochul hired is The Olson Group Ltd., based in Alexandria, Virginia. The company has done analysis after emergencies for several states.

The Olson Group’s contract, which the state calls for “after-action review services,” began Dec. 21, 2022, and was scheduled to end Dec. 20, 2023, according to a state record. The governor's office is now seeking an extension of the contract, according to the comptroller's office. The state has so far spent more than $1.1 million for the study, according to the record. The contractor will report directly to the governor’s office.

“I'm very frustrated by the pace,” Hochul said. “It turns out it would take a very long time for us to find a consulting firm that was not involved in advising my predecessor on the pandemic. So, all the top consultant firms that you would normally go to, they're all excluded.”

She has rejected concerns by some legislators that the report would be edited to conceal mistakes. “Absolutely it will be released to the public when it's done. We're staying on top of it; we're pushing. And I'm told it's going to be — I won't even give a date — but we're told it shouldn't be too far off,” Hochul said on Jan. 3.

Some legislators are trying to get an independent commission funded in the 2024-25 state budget. In the past, Hochul and previous governors have vetoed legislation calling for commissions and studies of the executive branch, arguing that the bills lacked funding. The state budget is due April 1.

The legislature’s commission would have access to all state records, “including confidential materials … and issue subpoenas,” according to the bill sponsored by Salazar and Assemb. Jessica González-Rojas (D-East Elmhurst). Commission members would be given “full access to data and testimony [and] free rein to follow the evidence.”

The commission would have 16 unpaid members, half appointed by the governor, including the chairman or chairwoman, and its meetings would be open to the public. Other members would be appointed by Democratic and Republican legislative leaders.

Panel would have subpoena power

Subpoena power under the legislature’s bill would compel testimony and records from members of the Cuomo administration who have left their state jobs, potentially including Cuomo. Cuomo directed the state’s response to COVID-19 since the virus was first confirmed in the state on Feb. 29, 2020, until he announced his resignation on Aug. 10, 2021, amid pressure from sexual harassment accusations.

“Gov. Hochul will review any legislation that passes both the Senate and Assembly,” Hochul spokesman Avi Small said.

Spokesman Rich Azzopardi said Cuomo supports a review and attributed criticism of his COVID response to “craven politics to exploit and weaponize people's pain to advance their own political ends.”

“We always said there should be a pandemic look-back to help inform how to address the next crisis and if that’s what it is, then great,” Azzopardi said. 

Calls to analyze the state’s pandemic response stretch back years.

In March 2022, state Comptroller Thomas DiNapoli audited part of the state’s COVID response. The audit found the state was unprepared for outbreaks in nursing homes, and that the state persistently underfunded public health over the previous decade.

“My office’s nursing home audits revealed major shortcomings and an alarming effort by the executive to downplay problems and undercount individuals who died from COVID,” DiNapoli told Newsday. “We must learn from these mistakes, and the review ordered by the governor is a critical part of this. It needs to be comprehensive and lay bare the problems that need fixing.”

Republicans and Democrats in a January legislative hearing questioned Health Department officials over the delay of the report’s findings. Republicans questioned the independence of the contractor hired by Hochul, head of the state Democratic committee, to critique the state’s COVID-19 response by Democrats who controlled the governor’s office and legislature.

“The state has an obligation to all New Yorkers to thoroughly review the policies and procedures adopted from the earliest stages of the pandemic,” Sen. Anthony Palumbo (R-New Suffolk) said. “While the report's delay is deeply concerning, our focus must remain on obtaining a finalized report that is dedicated to strengthening the state's response to new disasters instead of whitewashing Albany's past mistakes.”