Report: Nursing home order contributed to additional deaths

ALBANY — Gov. Andrew M. Cuomo’s nursing home directive in 2020 did contribute to New York’s death toll from COVID-19, despite the administration’s claims otherwise, according to a new report from the New York State Bar Association.

In a 242-page report, the lawyers’ group also concluded Cuomo’s directive, telling nursing homes to readmit their residents returning from hospitals even if they had the virus, was "unreasonable" in its "absoluteness" and remained in effect weeks longer than necessary.

Cuomo, a Democrat in his 11th year in office, is under fire on multiple fronts for his handling of the virus and nursing homes. The administration’s acknowledgment that it had delayed releasing the nursing home death data for months attracted the attention of federal officials who have launched a criminal investigation.

Further, an impeachment committee launched by the state Assembly is reviewing the nursing home issue as part of a multipronged probe that could ultimately bring charges against the governor. The committee also is investigating multiple sexual harassment claims leveled against Cuomo, as well as his $5.1 million book deal for a pandemic memoir. Attorney General Letitia James, who in January reported the Cuomo administration likely undercounted the number of nursing home deaths due to the virus, is separately investigating the sexual harassment claims.

The Bar Association convened a task force to review the "pandemic experience" of nursing homes and other long-term care facilities and covered a time period from the beginning of the pandemic through April 2021.

Among its findings:

• The governor’s March 25, 2020, directive isn’t the driver for all 15,000-plus COVID-19 deaths of nursing home patients as critics claim, but it is certainly a factor in more deaths than the Cuomo administration admits. The bar found that a Cuomo administration report, issued in summer 2020, "argued unconvincingly that the admission of 6,326 COVID-positive residents during the period the Health directive was in effect had no impact. That cannot be the case, and has now been shown not to be the case."
• The "absoluteness" of the directive was "unreasonable" because it effectively meant facilities couldn’t deny admittance, and it placed nursing homes "on the wrong footing" at a time the pandemic was spreading rapidly. Additionally, the state ordered nursing homes to stockpile personal protection equipment but then gave them little to no help in doing so.
• It was "unreasonable" to leave the directive in place "so long after it was necessary." It should have been lifted sooner when hospital capacity peaked in late April and a U.S. Navy hospital ship was sent home from New York Harbor because it wasn’t being used. Instead, the directive remained in place till May 10.

Hermes Fernandez, an Albany attorney and co-chair of the bar task force, said the panel didn’t have the capacity itself to determine how many additional deaths could be attributed to the directive.

But the task force reviewed existing reports from the Health Department, the attorney general’s office and the Empire Center, an Albany-based think tank which estimated the additional death toll as anywhere from several hundred to possibly more than 1,000.

"We did not consider the March 25 directive the driver … but we know it had an impact," Fernandez said in an interview with Newsday on Wednesday.

Cuomo’s Health Department responded with a written statement focused on some elements of the bar association’s report while not addressing findings about the controversial directive.

"The report goes on to say New York’s proportion of nursing home deaths to total deaths ‘varied little from the rest of the nation’ and that ‘New York’s nursing homes are no better and no worse than the nation at large,’ " said Jill Montag, a Health Department spokeswoman, in an email. "Sadly, this is yet another example of some politicians pushing their political agendas and personal vendettas."

She highlighted a passage in the report saying the panel "cannot say that New York’s experience has varied in a meaningful way from that of other states."

She added: "This latest report, like others before it, supports what we’ve said all along, that New York was blindsided and got hit the hardest, that when COVID got into communities it quickly and quietly spread from asymptomatic staff into nursing homes, and that New York’s nursing home experience was not unlike that of other states."

Assembly Minority Leader Will Barclay (R-Pulaski) said that on nursing homes, Cuomo has "blamed everything from political foes to an information void."

"What he hasn't done," Barclay said, "is accept any responsibility whatsoever."