The Cuomo administration’s alleged complaint about the deaths of nursing homes in New York is serious, perhaps deserving of federal criminal charges.
On March 25, 2020, Gov. Andrew Cuomo issued an executive order requiring New York nursing homes to admit hospitalized patients who had tested positive for Covid-19. The order also prohibited nursing homes from requiring hospitalized residents to be considered “medically stable” prior to admission or readmission. By the end of the summer, New York had more than 32,000 deaths from Covid, the highest in the nation and more than double that of any other state. If New York were his own country, he would have been ranked in the top ten for deaths by Covid. The death toll translates into the second highest mortality rate in the country, more than triple the national average.
What caught the attention of the Justice Department was Governor Cuomo’s assertion that deaths in nursing homes in New York were lower than in many other states and that his March 25 order did not contribute. to the extremely high number of New Yorkers who died of Covid. Given the disproportionate effect of the virus on the elderly, sick, and frail, it seemed unlikely. On August 26, the Civil Rights Division of Justice, based on its jurisdiction to investigate government-administered facilities under the Federal Civil Rights Act for Institutionalized Persons, asked the Cuomo administration data on New York nursing homes, which account for less than 5% of nursing homes in the state.
In September, New York produced data showing that a third had reported Covid’s death to government nursing homes. Undercounting seemed to be due to several factors. First, when a resident of the residence that hired Covid died after being taken to a hospital for treatment, New York did not consider her a “death at the residence.” Second, New York did not include deaths until centers for Medicare and Medicaid services began requiring Covid notification from nursing homes in mid-May. CMS made notification of previous deaths to Covid optional, and apparently New York chose to keep the information to itself.
But New York officials knew the data they reported to CMS only went back to mid-May. The Cuomo administration misled the public when it relied on these data to claim in late September that the total number of deaths in state nursing homes was low.