Andrew Cuomo's top aide admitted that New York's laws around nursing homes are too lenient, as she sought to fend off criticism of the governor's handling of a scandal surrounding deaths from COVID-19 in the care facilities.
Melissa DeRosa, the secretary to the governor, unleashed a political firestorm when she admitted, in a call to state Democrats last week, that the administration had deliberately dragged their heels on releasing data.
State Democrats sought information on deaths from COVID among nursing home residents back in August. But DeRosa, in the call obtained by The New York Post and released on Thursday, confessed that administration officials 'froze' when asked for the information, because they were concerned Donald Trump's Justice Department may be investigating them.
The data remained secret for months until January, when a report from New York Attorney General Letitia James' office said the state had undercounted the number of nursing home deaths by as much as 50 percent.
It forced New York State’s Department of Health to reveal that the true death toll among nursing home residents was 12,743, rather than the previously acknowledged 8,711. New York had previously only counted residents who died in nursing homes, and left out 4,000 residents who were taken to hospital and died there.
Melissa DeRosa, Governor Andrew Cuomo's top aide, spoke candidly on the call last week
DeRosa, pictured with Cuomo in January 2017, said laws on nursing homes were insufficient
Andrew Cuomo, governor of New York, was in the Oval Office on Friday to discuss COVID relief
Left to right: Cuomo, Kamala Harris, Joe Biden and Gov Michelle Lujan Grisham of New Mexico
A March 25 directive from Cuomo had ordered nursing homes to accept thousands of COVID-positive patients when they were discharged from hospital - potentially spreading sickness and death among residents, until it was repealed on May 10.
Cuomo, governor of New York since 2010, is facing calls to resign and even be prosecuted over the cover-up scandal.
Cuomo released a book about his handling of the pandemic and he also won an Emmy for his daily TV briefings
On Sunday the Post released further detail from DeRosa's conversation with the state Democrats, which showed her accepting that the laws concerning nursing homes were insufficient.
'I think a lot of these nursing homes, frankly, retrospectively, even prior to COVID have been getting away with a lot for a lot of years,' said DeRosa.
Her admission came after a Democratic assemblyman, Ron Kim - whose uncle is presumed to have died of the coronavirus in a nursing home - asked about measures to hold 'the bad actors accountable' and bring 'retroactive justice' against facilities that mixed COVID-positive residents with others.
'I think that if there is any evidence that anyone was willful, or anyone was negligent in a way that goes beyond the normal course that costs people's lives, I think that we all share the same goal, which is to hold them accountable,' said DeRosa.
At least 15,000 nursing home residents are now known to have died of COVID-19 in New York
A nursing home patient is pictured being vaccinated against COVID on January 6 in Brooklyn
Beth Garvey, Cuomo's counsel, then admitted that nursing homes had not been punished for mixing COVID-positive patients with other residents.
'It has not happened,' said Garvey.
'We have significant due process, obviously, for those operators that we have to go through and hearings. So those are still ongoing.'
She said no nursing homes had been placed into receivership.
'We do not have at this juncture, you know, any receivers appointed right now,' she said.
Between the start of the pandemic and February 4 the state Department of Health has conducted 2,284 infection control inspections in nursing homes, and issued 170 violations.
Those 170 violations have resulted in $1.3 million in fines, with state fines capped at $10,000 each.
'Ten thousand dollars is really the maximum that we can assess for a violation, even a willful violation of a public health law,' said Garvey.
DeRosa added: 'I think that that's something we should revisit, I think then we should be increasing the penalties. I'm not suggesting we shouldn't have due process. But if there is a way that we can change the law where we can expedite some of this, we should do it.'
Richard Mollot, head of the nursing home residents' advocacy group Long Term Care Community Coalition, told the paper that Cuomo's aides correctly identified a problem, but were wrong to say it was the fault of the existing rules.
'The governor and Department of Health do not need to wait for the legislature,' said Mollot.
'They can provide immediate relief to residents and families by improving enforcement of minimum standards, releasing guidance to allow every resident to designate a visitor, and opening communications with resident advocates.'
Cuomo's spokesman, Rich Azzopardi, said on Sunday: 'Legislators seemed to agree with us that the fines were too low and new actions are needed to further protect patients in these facilities and there was a commitment further discuss these vital changes.'
Cuomo's decision on March 25 to order nursing homes to readmit convalescing COVID residents, to free up hospital space, has been widely criticized.
He rescinded the order on May 10, but by then 9,000 people had returned to their nursing facilities.
In August questions began to be asked, both by state politicians and by the Justice Department.
DeRosa admitted in the call that they 'froze' when questioned, and were not forthcoming with data.
At the end of January the New York state attorney, Letitia James, revealed that Cuomo's administration had undercounted the number of deaths from COVID among nursing home patients by almost half, with 15,000 residents having died but their deaths being recorded as hospital deaths, not nursing home deaths.
Cuomo, asked about the data discrepancy, replied: 'Who cares where they died,' arguing that the sad fact remained that they had died - regardless of whether it was in a hospital or in a nursing home.
Relatives of victims were outraged at his comment, which was taken as a proof by critics of a callous and cavalier approach.
Cuomo himself was at the White House on Friday, to meet Joe Biden and discuss COVID relief.
He has not addressed the controversy, turning down requests to appear on cable news shows and comment on the growing scandal.
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