ALBANY, N.Y. (NEWS10/WETM) — According to a report released by the New York Post Thursday, Gov. Andrew Cuomo’s top aide privately apologized to Democratic lawmakers during a phone call for allegedly withholding the state’s nursing home death toll from COVID-19.
The report claims Secretary to the Governor Melissa DeRosa said they “froze” out of fear that the true numbers would be “used against them” by federal prosecutors.
“Basically, we froze,” DeRosa told lawmakers on the call. “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.”
Several Capital Region lawmakers responded Thursday night after the report was published.
The Cuomo Administration has been under fire for several months about its handling of nursing homes and the coronavirus pandemic. A January report by the New York Attorney General’s Office found the New York State Department of Health may have undercounted the number of COVID-19 deaths in nursing homes by as much as 50%.
Lawmakers and advocates have called on Gov. Andrew Cuomo and Health Commissioner Howard Zucker to release detailed information on nursing home deaths. The DOH finally did so Wednesday night after the New York Supreme Court ruled in favor of a lawsuit filed by The Empire Center for Public Policy that their FOIL request for detailed information be honored.
The organization compiled the information and created a spreadsheet that outlines nursing home deaths by facility, county, date of death, and whether the death was in-facility or out-of-facility death, and COVID confirmed or COVID presumed.
However, they said the information is still incomplete and falls short of the court order. They said in-part:
The release came six months after the FOIL request was submitted, five months after we and the Government Justice Center filed suit, and one week after a court found that the department had violated FOIL and ordered it to release what were clearly public records.
Still, the department’s response falls short of what was requested—and therefore what Justice Kimberly O’Connor ordered.
First, the records do not fully account for the deaths of some 600 residents that occurred outside of the long-term care facilities, most often in hospitals, in which the COVID-19 diagnosis was presumed rather than confirmed.
The department provided a summary of those deaths, but not their dates. The department has been reporting presumed deaths inside the facilities since early May. Withholding this data appears to be a violation of Justice Kimberly O’Connor’s court order, and we will attempt to address this first with DOH.
Second, the department provided the data in a password-protection spreadsheet when we had specifically requested otherwise. This was a relatively minor inconvenience, but violates the spirit if not the letter of the Freedom of Information Law.
Between last week’s court order and tonight’s formal response, the department posted new death totals for each facility, including hospital deaths that had previously been omitted. Those revelations increased the known death toll from about 9,000 to almost 15,000—making clear that the pandemic’s toll on long-term care residents was much worse than the Cuomo administration previously portrayed it to be.EMPIRE CENTER FOR PUBLIC POLICY
With more information emerging about the closed-door meeting between top Democratic legislators and Cuomo aide Melissa DeRosa regarding the reported statewide undercount of nursing home deaths.
Friday morning, USA Today journalist Jon Campbell tweeted a partial transcript of the meeting:
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 as 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.
I’m speaking more generally than just the nursing home death numbers.
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 Newsome, 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. 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 and what we start saying was going to be used against us and 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. 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. 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 so sure that you’re—
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 of a partnership. I want to answer your questions on a rolling basis. I’ve offered to do something weekly or bi-weekly with you guys to get questions and more often times we can have candid conversations 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.
That is what happened. On the audit, 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 [retro]spectively, tell us anyone that died in the facility, anyone you think died of COVID in the facility—like presumed has a medical context and definition—but just saying presumed in the nursing home [inaudible] 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. DOH, in the middle of what was still the height of the pandemic, when 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. 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. 14,000 people. Then it wasn’t 14,000, it was like 6,000 or whatever the number was. 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—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.
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 to answer you guys if it means Shontell or Louann arrange one-offs and Zooms and phonecalls or weekly meetings, or whatever—I’m open to it.
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.
Senator Skoufis: Okay. Thank you.
Assembly Member Gottfried: We don’t have enough time today to explain all the reasons why I don’t give that any credit at all.
Senator May: I’d like to jump in here too because and just follow up to James and I, I’m not sure about anyone else in our colleagues here, but also the other thing going on that we were in difficult re-election campaigns and getting hammered about this every single day and apparently my worthwhile opponent who [inaudible] today attacking me on this issue too.
The issue for me, the biggest issue of all, is feeling like I needed to defend or at least not attack an administration that was appearing to be covering something up. In a pandemic when you want the public to trust the public health officials and there is clear feeling that they’re not being forthcoming with you, that is really hard. It remains difficult. I think I want to ask you to figure out how do you do this messaging in a way that makes it clear to people—I mean, if you could explain some of these things to people in real-time instead of just feeling like you’re not telling people the real story that would make it easier on you and easier on us at the same time.
Assembly Member McDonald: Can I just chime in? Secretary, I appreciate your summary of what happened the last few months. So just to summarize and get back on the agenda, just to simplify what’s been said, it sounds like there’s been multiple data points that had to be matched if that’s what I’m hearing. There was a number of extenuating things that were occurring at the same time that prevented the nursing home data to be matched with the hospital data. Whatever. Where are we now? Can we just get to this point? Did we resolve all the data matching? Have we resolved it?
Melissa DeRosa: I’m happy to take this, Assemblyman. Sorry, doctor, if it’s okay. I was briefed from the data team right before we came in. So, on page—I actually don’t know which page it is—but the upshot is, yes and no. Yes, meaning the confirmed in-hospital we believe is resolved. They’re going to go back and audit it again to make sure and they’re going to line it up with death certificates once this is all over. That number we believe is firmly resolved. There was the category of probable out of facility. Either in a hospice or a hospital. The nursing home people at DOH went back to the nursing homes and said what did you base this on? Their answer was we based it on what we thought retrospectively.Transcript by Jonathon Campbell (The Journal News)
In response to the NY Post’s report, another senior Cuomo aide, Rich Azzopardi, tweeted several responses to the criticism the administration has received on Thursday night:
“We explained,” Azzopardi tweeted, “that the Trump administration was in the midst of a politically motivated effort to blame democratic states for COVID deaths and that we were cooperating with Federal document productions and that was the priority and now that it is over we can address the state legislature. That said, we were working simultaneously to complete the audit of information they were asking for.”
And on Friday morning, both Azzopardi and DeRosa responded further on the subject:
In the tweet DeRosa says: “I was explaining that when we received the DOJ inquiry, we needed to temporarily set aside the Legislature’s request to deal with the federal request first. We informed the houses of this at the time. We were comprehensive and transparent in our responses to the DOJ, and then had to immediately focus our resources on the second wave and vaccine rollout. As I said on a call with legislators, we could not fulfill their request as quickly as anyone would have liked. But we are committed to being better partners going forward as we share the same goal of keeping New Yorkers as healthy as possible during the pandemic.”
It is important to note that the information DOJ requested is different from the information that the State legislature requested.
August 3 – NYS DOH Commissioner Dr. Howard Zucker testifies before the NYS Legislature regarding COVID and nursing homes/long term care facilities
August 20 – Assembly and Senate each send letters to DOH with follow up questions seeking additional information
August 26 – DOJ sends letter request to Democratic governors about nursing home fatalities
September – Governor’s Office asks legislative leaders to pause our response time to the August 20 letters so the administration can first resolve the DOJ inquiry
October 28 – DOJ sends additional letter inquiry re nursing homes
Thanksgiving/early December – second COVID wave in NYS begins
December 11 – Pfizer vaccine approved
December 14 – first vaccine delivery to NYS
For his part, Gov. Andrew Cuomo is able to sidestep the scandal for now. He is meeting with President Joe Biden Friday morning to discuss passing the American Rescue Plan relief bill. Also present will be the governors of Arkansas, New Mexico, and Maryland, plus the mayors of Atlanta, New Orleans, Detroit, Miami, and Arlington, Texas.