Something is rotten in the state of New York. And, as in Shakespeare’s Hamlet, it starts at the top. For the past year, New York governor Andrew Cuomo, with the aid of a credulous and adoring media, has touted his performance in combating Covid-19 and chided other states for their comparative deficiencies. He was rewarded with a lucrative book contract and an Emmy for providing “reliable information” in his news conferences. The cover has finally been blown on a prolonged and concerted effort by Cuomo and his associates to hide his policy mistakes.
Between March 25 and May 10, 2020, an advisory from Cuomo’s Department of Health (DOH) compelled nursing homes to readmit hospitalized Covid-19 patients without checking if they still had active infection. Health experts cautioned that the policy could lead to additional deaths by introducing infected people into closed facilities where those most vulnerable to the disease—the elderly and infirm—live. Cuomo’s responses ranged from the devil—aka the Trump administration—made me do it; to we didn’t force anything—facilities had discretion to turn down admissions; to “nothing to see here”—the policy didn’t increase the number of deaths; to “who cares” where they died.
Cuomo repeatedly and falsely claimed that the policy was directed by federal guidance. A July DOH report (now revised) also claimed that the nursing-home admission policy was following federal guidance that homes “should accept residents with COVID-19.” In fact, the federal guidance was permissive, not proscriptive: “A nursing home can accept a resident diagnosed with COVID-19 . . . as long as the facility can follow CDC guidance for Transmission-Based Precautions” (emphasis added).
The DOH report also claimed the state never “directed that a nursing home must accept a COVID-positive person” (emphasis in original). In fact, the March 25 advisory explicitly said that nursing homes “must comply” with the return of hospital patients. Nursing homes were instructed that they could not deny admission “based on a confirmed or suspected diagnosis of COVID-19” (underlining in original) and were “prohibited” from testing prospective admissions for Covid-19.
The DOH report asserted that Covid-19 was already present in nursing-home staff before the new policy and that since the peak of nursing-home admissions from hospitals was one week after the peak of nursing-home fatalities, transmission from staff, not the policy-directed admissions from hospitals, must be the cause of the fatalities. The report seems to discount completely the possibility that adding thousands of infected patients back into the facilities could increase transmission and death. No one claims that the policy-driven admissions caused all the nursing-home deaths, but they very likely unnecessarily increased them.
The report also maintained that the admissions were not problematic because the median length of hospital stay for nursing-home admissions was nine days, and Covid-19 patients are most likely no longer infectious nine days after symptom onset. Yet the claim about how long infectiousness lasts is based on a CDC publication stating that mild-to-moderate Covid cases are not usually infectious beyond ten days post-symptom onset, but severe cases can be infectious up to 20 days. Mild-to-moderate cases do not usually result in hospitalization. Hospitalized patients are far more likely to have had severe symptoms and remain infectious beyond nine days. In addition, a median is the midpoint of a distribution. By definition, half the nursing-home admissions had a hospital stay of less than nine days and were therefore more likely to remain infectious when they were returned to nursing facilities.
Ultimately, no one can say for sure the source of the viruses that killed nursing home residents. It may be, as is often the case, that Cuomo’s coverup was worse than the actual admission policy. Early on, it became apparent that the DOH was understating nursing-facility deaths by only reporting people who had died on-site and not reporting people who had been transferred from facilities to hospitals, where they died. Journalists, academics, and legislators requested accurate counts of admissions and fatalities only to be stonewalled by the Cuomo administration.
The Associated Press made a Freedom of Information Law request in May for the number of admissions during the policy period but got no response. On August 3, the Empire Center for Public Policy, an Albany-based think tank, filed a FOIL request for the true numbers of nursing-home deaths. The DOH claimed that it couldn’t respond until November. The Empire Center finally sued the DOH to compel it to comply. New York legislators also made multiple inquiries but were rebuffed.
The dam finally broke when the New York Attorney General Letitia James issued a report on January 28 that found the DOH had underreported in-facility deaths by as much as 19 percent, and that when nursing-home residents who died at hospitals were added in, the DOH had undercounted the total number of nursing-facility deaths by 50 percent. The attorney general also concluded that the March 25 directive to admit Covid-19 patients “may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.”
In response, New York State Health Commissioner Howard A. Zucker tried to elide the question of nursing-home undercounting by claiming that the report confirmed DOH numbers on total statewide Covid-19 deaths. He falsely boasted that nursing-facility resident fatalities, both in facilities and hospitals, were still a lower percentage of Covid-19 fatalities in New York than the 35 percent nationwide average.
Six days later, the judge in the Empire Center FOIL request case held that the DOH had violated the Freedom of Information Law and ordered release of the requested nursing-home data. The state’s response showed that about 15,000 nursing-home, assisted-living, and other adult-care facility patients had died of Covid-19—a 63 percent increase in the number of facility deaths from what DOH had previously reported.
This past week, the DOH finally responded to the AP’s May FOIL request, revealing that more than 9,000 Covid-19 patients had been admitted to nursing facilities pursuant to its March 25 directive—43 percent higher than what the state had previously disclosed.
Finally, the most damaging disclosure was a leaked recording from February 10, in which a top Cuomo aide admitted to Democratic lawmakers that the administration hid the true numbers of nursing-home deaths for political reasons. The administration had worried that federal investigators would use these numbers against the governor. A February 11 addendum to the original DOH report now acknowledges that nursing-home deaths account for 35 percent of New York’s Covid-19 deaths.
Yet Cuomo’s policy failures are not confined to nursing homes. His capricious policies on business and restaurant closures, unmoored from public-health data, have destroyed small businesses statewide and wiped out New York City restaurants. The December restaurant reclosure was made at the same time that New York officials released data indicating that during the September–November period in which restaurants were open, restaurants and bars accounted for only 1.43 percent of Covid-19 cases. Transmission in homes and at social events account for nearly 74 percent of cases. And the New York Times noted that the metrics Cuomo had said would guide his decisions on business reopening were worse when he announced New York City restaurants could reopen for indoor dining on February 14 than when he closed them in December. Even New York Democrats are now calling for curbing Cuomo’s emergency powers.
Cuomo has eagerly criticized other state governors’ pandemic responses. “You played politics with this virus and you lost,” he chided. “Look at the numbers.” He had particular censure for Florida governor Ron DeSantis. In fact, New York has the nation’s second-most Covid-19 deaths per million population, just behind New Jersey—and nearly twice as much as Florida. It turns out that it was Cuomo who was playing politics.
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