It's Early — But Here's What Feds Could Look at in Cuomo Admin Nursing Home Probe

Since late last spring, Gov. Andrew Cuomo’s administration has faced criticism from families and later Republican lawmakers over a March state health department order mandating that nursing homes accept residents discharged by a hospital even if those residents had COVID-19 at the time they were released.

Cuomo says this order from the health department was consistent with CDC guidance under then-President Donald Trump's administration and his own medical team’s guidance that the best thing for freeing up the precious few hospital beds was to return seniors to nursing homes even if they had COVID-19.

For months, state lawmakers asked for accurate statistics as to who died in hospitals versus who died in nursing homes because of COVID-19.

Now the administration’s reporting on those statistics is part of a federal criminal probe that was opened in the past week and is in its very early stages, multiple people familiar with the matter say.

Current and former law enforcement officials say investigators are in the very early stages of their investigation. They say possible investigative avenues could include looks at potential false statements, any scheme to defraud the federal government of funds or any misuse of federal funds.

Law enforcement officials say the inquiry began recently and in part after complaints from both Republican and Democratic state officials about delays in reporting accurate nursing home death statistics tied to COVID-19.

This inquiry is different from the civil inquiry connected to a letter sent from the Justice Department last summer.

For his part, Cuomo has acknowledged a "void" in reporting by his administration that caused pain to families and said he feels "bad about that." He said in a conference call with reporters Wednesday it was not "illegal" or "unethical."

In that same conference call, the New York governor said, "We followed the CDC and CMS, so if you want to say it was wrong, then you have to say Trump was wrong and the CDC and CMS.”

“My health experts don't believe it was wrong and we've gone through all the facts several times," he added. "If we did believe it was wrong, then we would say we believed it was wrong and we made a mistake following CDC and CMS guidance and then I would sue the federal government for malpractice on their CDC and CMS guidance.”

Some family members of those who died at nursing homes from COVID-19 and Republicans criticized the decision, saying it led to rampant spread of the virus in nursing homes.

But a recent report by the New York state attorney general's office alleged that the health department underreported the COVID-19 death toll in nursing homes by as much as 50 percent.

Cuomo has insisted that it was up to the nursing homes to alert state health officials if they were not equipped to take care of infected residents. A report issued by the state in July laid the blame for the more than 8,500 deaths of seniors on staffers who unwittingly infected residents.

Dr. Howard Zucker, the state health commissioner, insisted in a statement that there was no "undercount."

"The word 'undercount' implies there are more total fatalities than have been reported; this is factually wrong," Zucker said. "The OAG's report is only referring to the count of people who were in nursing homes but transferred to hospitals and later died. The OAG suggests that all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals."

That report from the attorney general combined with new statistics released by Cuomo’s administration (in a Thursday update it said 13,453 New York nursing home residents died of COVID-19 within or outside their facilities, up from the previously disclosed 8,500) - sparked furor not just from some families and Republicans but from Democratic lawmakers, too.

A key point to note: The total number of those who died of COVID-19 in New York state remains unchanged. It's the location of death -- nursing homes or hospitals -- that did.

The political rancor was further inflamed when the governor’s secretary, Melissa DeRosa, recently told state lawmakers why there was a delay from last summer to now in responding to their inquiries as to how many died at nursing homes.

DeRosa pointed out that around the time the Cuomo administration was asked by state lawmakers for more answers on nursing home deaths, the state received a letter from the Justice Department civil rights division asking for information on the deaths as well. The dueling requests created the "void" Cuomo discussed Wednesday, the governor said.

According to the published transcript of that earlier call DeRosa said, “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, what we start saying was going to be used against us while we weren't sure if there was going to be an investigation.”

DeRosa went on to say, “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," the transcript said. "They sent a letter asking a number of questions and then we satisfied those questions and it appears that they're gone. But that was how it was happening back in August.”

People familiar with the matter say it was shortly after it became public what DeRosa said to state law makers that federal investigators started asking questions.

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The investigation comes as Queens Democratic state Assemblyman Ron Kim accused the governor of obstruction and other wrongdoing after an AP report alleged his administration misrepresented the number of nursing home deaths.

Now Kim says Cuomo is "trying to punish me" for speaking out.

In a Zoom interview with NBC New York on Wednesday, Kim broke down and had to end the conversation after recounting how the governor called him at home and allegedly threatened him when he was with his wife and kids.

"He spent 10 minutes berating me, yelling at me, threatening me and my career, my livelihood," Kim said. The lawmaker said that his wife heard much of the interaction and was shocked and scared, saying she "didn't sleep that night."

New York City Mayor Bill de Blasio, who has at times butted heads with Cuomo on a range of matters, told MSNBC Thursday he wasn't surprised by the allegations.

"That's classic Andrew Cuomo," de Blasio said. "A lot of people in New York state have received those phone calls, you know, the bullying is nothing new, I believe Ron Kim, and it's very, very sad – no public servant, no person who's telling the truth should be treated that way.”