The Cuomo government’s alleged misstatements about deaths in nursing homes in New York are serious, perhaps deserving federal criminal charges.
On March 25, 2020, Governor Andrew Cuomo issued an executive order requiring New York nursing homes to admit hospitalized patients tested positive for Covid-19. The order also prohibited nursing homes from requiring hospitalized residents considered “medically stable” to be tested before admission or readmission. By the end of the summer, New York had more than 32,000 deaths from Covid, the largest in the country and more than double that of any other state. If New York had been its own country, it would have been in the top ten in Covid’s deaths. The number of deaths resulted in the second highest death rate in the country – more than three times the national average.
What caught the attention of the Justice Department was Governor Cuomo’s claim that deaths in New York’s nursing homes 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 from Covid. Given the disproportionate effect of the virus on the elderly, the sick and the frail, this seemed unlikely. On August 26, the Civil Rights Division of Justice, relying on its jurisdiction to investigate government-managed facilities under the Federal Civil Rights Act for Institutionalized Persons, requested the Cuomo administration for data on publicly administered nursing homes in New York. York, which represent less than 5% of nursing homes in the state.
In September, New York produced data showing that Covid’s deaths in government-run nursing homes had been underreported by a third. The reduced count appeared to be due to several factors. First, when a nursing home resident who hired Covid died after being transported to a hospital for treatment, New York did not consider this a “death in a nursing home”. Second, New York did not include deaths that occurred before the Medicare and Medicaid Service Centers began demanding Covid reports from nursing homes in mid-May. The CMS made reporting Covid’s previous deaths optional, and New York apparently chose to keep the information to itself.
But New York officials knew that the data they reported to CMS was only dated mid-May. The Cuomo administration deceived the public when it relied on this data to claim in late September that the total number of deaths in nursing homes in the state was low.