Top aides to Gov. Andrew Cuomo altered a state Health Department report to obscure the true number of people killed by COVID-19 in the state's nursing homes, The Wall Street Journal and The New York Times reported late Thursday.
The aides, including the secretary to the governor, Melissa DeRosa, pushed state health officials to edit the July report so only residents who died inside long-term care facilities, and not those who became ill there and later died at a hospital, were counted, the newspapers reported, citing documents and people with knowledge of the administration's internal discussions.
The report was designed and released to rebut criticism of Cuomo over a March 25 directive that barred nursing homes from rejecting recovering coronavirus patients being discharged from hospitals. Some nursing homes complained at the time that the policy could help spread the virus.
The report concluded the policy played no role in spreading infection.
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The state's analysis was based partly on what officials acknowledged at the time was an imprecise statistic. The report said 6,432 people had died in the state's nursing homes.
State officials acknowledged that the true number of deaths was higher because of the exclusion of patients who died in hospitals, but they declined at the time to give any estimate of that larger number of deaths, saying the numbers still needed to be verified.
The Times and Journal reported that, in fact, the original drafts of the report had included that number, then more than 9,200 deaths, until Cuomo's aides said it should be taken out.
State University of New York Chancellor Jim Malatras said Friday that he was asked to review and provide feedback on the nursing home report to make it more accessible for a general audience. "As with many reports," Malatras said there was some back and forth over the contents but notes, "to be clear, I included the fatalities data provided by the NYDOH, which I did not alter and change."
State officials insisted Thursday that the edits were made because of concerns about accuracy, not to protect Cuomo's reputation.
“While early versions of the report included out of facility deaths, the COVID task force was not satisfied that the data had been verified against hospital data and so the final report used only data for in facility deaths, which was disclosed in the report,” said Department of Health Spokesperson Gary Holmes.
"The out of facility data was omitted after DOH could not confirm it had been adequately verified — this did not change the conclusion of the report, which was and is that the March 25 order was 'not a driver of nursing home infections or fatalities,'" said Beth Garvey, special counsel and senior advisor to the governor. "COVID Task Force officials did not request that the report conclude the March 25 order played no role; in fact Task Force Members, knowing the report needed to withstand rigorous public scrutiny were very cautious to not overstate the statistical analysis presented in the report."
Garvey on Friday continued to fire back against criticisms, saying no one on the team "changed any of the fatality numbers or 'altered' the fatality data." She added that the governor's office "concluded that given the uncertainty of one data set that had not been verified, it did not need to be included."
Scientists, health care professionals and elected officials assailed the report at the time of its release for flawed methodology and selective stats that sidestepped the actual impact of the directive.
Cuomo had refused for months to release complete data on how the early stages of the pandemic hit nursing home residents. A court order and state attorney general report in January forced the state to acknowledge the nursing home resident death toll was higher than the count previously made public.
DeRosa told lawmakers earlier this month that the administration didn't turn over the data to legislators in August because of worries the information would be used against them by the Trump administration, which had recently launched a Justice Department investigation of nursing home deaths.
“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 said.
Cuomo and his health commissioner recently defended the March directive, saying it was the best option at the time to help free up desperately needed beds at the state’s hospitals.
“We made the right public health decision at the time. And faced with the same facts, we would make the same decision again,” Health Commissioner Howard Zucker said Feb. 19.
The state now acknowledges that at least 15,000 long-term care residents died, compared to a figure of 8,700 it had publicized as of late January that didn’t include residents who died after being transferred to hospitals.
The report comes two days after legislators from New York's Assembly and state Senate struck a deal to strip Cuomo of his pandemic-linked emergency powers and return matters like lockdowns to local control.
The deal, which is expected to be voted on Friday, will reverse emergency powers granted to Cuomo exactly a year ago that gave him free rein to order measures like quarantines. It will allow executive actions critical to public health to remain in effect while permitting other temporary emergency powers to expire on April 30.
“I think everyone understands where we were back in March and where we are now. We certainly see the need for a quick response but also want to move toward a system of increased oversight, and review. The public deserves to have checks and balances. Our proposal would create a system with increased input while at the same time ensuring New Yorkers continue to be protected,” Senate Majority Leader Andrea Stewart-Cousins said in a statement.
Officials believe the bill will be passed as early as this Friday. According to the deal, standing directives taken by executive action that manage the spread or reduction of COVID-19, facilitate the vaccination process, or require use of face coverings, will remain in effect for an additional 30 days.
While the deal leaves Cuomo with the authority to extend some existing measures, even there he will have to notify various legislative leaders and accept public comment for or against his actions. Legislators will also have the power to repeal a gubernatorial declaration of a state of emergency.
Under the deal, directives can be modified to revise the number of individuals, businesses, or entities impacted by an executive order - for example, individuals eligible for vaccination or seating capacity of a business. Directives will not be continuously modified or extended unless the governor has responded to comments provided by the chairs of relevant committees.
Where a local government in the state is exclusively impacted by an ongoing executive action, the local government's leaders will also receive notice and an opportunity to comment on the continuation or modification.
Fifteen days after the deal takes effect, all current suspensions and directives will be posted on the website of the governor in a searchable format, and include details on such suspensions and directives, including the public health and safety reasons any directives were extended or modified. Every 30 days after, the website will be updated to include responses to written comments or information requests from relevant committee chairs or municipal government entities.
Republicans who have long tried to remove Cuomo’s powers called the proposed legislation a “bogus backroom deal” that lacks teeth. Senate Republican Leader Rob Ortt said the nursing home revelations call the governor’s leadership into question.
Queens State Senator John Liu said the agreement is less about retribution from the mushrooming scandals the governor is facing, and more about restoring the balance of power in Albany between the branches of government.
The changes come amid mounting calls for Cuomo to resign, as he faces three worsening scandals -- accusations of sexual harassment by at least three young women, accusations of verbal abuse by legislators, and accusations of mismanagement in the handling of the pandemic in nursing homes.
His administration now faces both an independent investigation into the sexual harassment issues overseen by the state attorney general's office, as well as a federal probe into the nursing home problems.
For the last year, executive orders have let Cuomo govern the state with little resistance, whether it was closing schools, mandating people work from home, restricting transit, or stopping (and then restarting, and stopping again, and then restarting again) indoor dining.
But as his problems deepened, so did calls for the legislature to regain a measure of control by stripping the emergency authority.
“A year into the pandemic, and as New Yorkers receive the vaccine, the temporary emergency powers have served their purpose – it is time for them to be repealed,” Assembly Speaker Carl Heastie said. “These temporary emergency powers were granted as New York was devastated by a virus we knew nothing about. Now it is time for our government to return to regular order.”
