State lawmakers on Thursday grilled New York’s top health regulator about a March 25 state order that directed nursing homes to admit recovering COVID-19 patients and Gov. Andrew Cuomo’s administration withholding for months the true coronavirus-related death toll of nursing home residents.
The questioning of Health Commissioner Dr. Howard Zucker unfolded over more than three hours at a state budget hearing, with many inquiries related to a Jan. 28 report by the state Attorney General’s Office that revealed state health officials were underreporting COVID-19 deaths of nursing home residents by about 50%.
Zucker vehemently defended state officials’ pandemic response, saying a controversial Department of Health report in July that asserted its March 25 order was “not a significant factor in nursing home fatalities” remained accurate despite the revised death tally.
“The virus, despite our collective best efforts to prevent it, was inadvertently brought into the nursing homes by dedicated staff at a time when we did not know enough about the science,” Zucker said.
“It was tragic. It was troubling. But it was true,” he added.
The high-stakes testimony comes as Cuomo’s administration faces a federal probe of its handling of COVID-19 in nursing homes, as well as a political scandal ignited after his top aide, Melissa DeRosa, acknowledged intentionally withholding nursing home death data from state lawmakers and the public after receiving a federal Department of Justice inquiry last year.
It was Zucker’s first testimony in front of a legislative committee since Aug. 3, when lawmakers accused the health commissioner of downplaying the number of COVID-19 deaths in nursing homes to defend state policies.
What Zucker said about NY nursing home deaths
Central to the hearing is debate over why state officials delayed the release of COVID-19 death data on the number of nursing home residents who died of the respiratory disease at a hospital or other location, rather than the homes themselves.
Asked about the delay, Zucker said: “As the governor said last week that there was a void that was created and the information should have been released sooner and he regretted that and I share that.”
Zucker also repeatedly urged lawmakers to consider the rapidly-evolving conditions during the pandemic, as well as breakthroughs in scientific understanding since the virus struck in March.
“I wish I could say that I had all the answers back then. I didn’t. We didn’t. Not the scientists, the public health experts, the journalists, the policymakers, those on the frontlines,” Zucker said.
“Ironically the year was 2020. With 20/20 foresight, we would have built stockpiles, implemented more precautionary measures, and revved up manufacturing. Instead, we have all learned together,” he added.
The comments expanded upon Zucker’s initial defense during an Aug. 3 legislative hearing that he wanted to avoid double counting COVID-19 deaths related to nursing home residents transferred to hospitals, despite the fact many other states reported the statistic amid the pandemic, according to the Kaiser Family Foundation.
DeRosa’s comments during a closed virtual meeting on Feb. 10, however, acknowledged state officials “paused” disclosing the data to prioritize responding to DOJ inquiries.
Further, within hours of the attorney general’s report release on Jan. 28, New York state officials revealed the true COVID-19 death toll of nursing home residents to be about 13,000, up from the 8,700 previously reported who had died in the homes themselves.
At the time, Zucker said he was finalizing the death data in preparation for the state legislative hearing but decided to release aspects early to counter misconceptions in the attorney general’s report.
During a conference call with reporters Thursday, Steven Cohen, a former Cuomo aide and special pandemic adviser to the governor’s office, defended DeRosa’s comments during the Feb. 10 meeting, saying the federal inquiries last year were politicized by then-president Donald Trump but state officials nonetheless handled them appropriately.
“There was no cover up; there was no obstruction,” Cohen said, adding state officials provided information requested by DOJ and continue to do so.
What lawmakers said about nursing homes
During the hearing, Sen. Jim Tedisco, R-Glenville, Schenectady County, asserted the delayed release of COVID data made it impossible to determine what caused the “disaster” in long-term care facilities and improve conditions amid the pandemic.
Sen. Sue Serino, R-Hyde Park, Dutchess County, questioned Zucker on how the situation is hindering ongoing legislative debates over enacting comprehensive reforms to improve transparency, oversight and regulation of nursing homes.
“How can we talk about reform when there hasn’t been a comprehensive review of where the state went wrong,” she said.
In an apparent reference to the DOJ probe, Zucker responded: “There is an ongoing investigation on this issue, and I’ll leave it at that.”
Meanwhile, family members have also voiced concerns the delayed release of data prevented them from making fully informed decisions about loved ones living at nursing homes.
Sen. Tom O’Mara, R-Big Flats, Chemung County, peppered Zucker with questions about who in state government made the decision to withhold the nursing home data, as well as details of the DOJ investigation.
After Zucker declined to respond to the inquiries citing the ongoing federal probe, O’Mara said: “I find virtually everything you’ve said here today to be totally without credibility.”
“I’m sorry to hear that,” Zucker responded.
What Zucker said about COVID legal immunity
Another aspect of the nursing home crisis involved Cuomo and lawmakers in April creating limited immunity provisions for health care providers, including nursing homes, relating to COVID-19.
The state Legislature in July passed a bill that was signed by Cuomo to limit the scope of immunity for health care providers, but advocates said more revisions are needed. Attorney General Letitia James last month recommended eliminating the immunity to ensure no one can evade potential accountability.
During the hearing Thursday, Sen. Alessandra Biaggi, D-Bronx/Westchester, asked Zucker if he supported the immunity provisions when they passed, and whether that support continued today.
“I support what we did with the immunity at that point in time,” Zucker said, citing the higher infection rates last spring.
Zucker added the infection “numbers are coming back down now” and indicated changes can be made to the immunity provisions.
Ron Kim, the Democratic Queens Assemblyman and vocal critic of Cuomo’s handling of nursing homes, has asserted Cuomo let one of his top political donors, the Greater New York Hospital Association, draft the legal immunity provisions for health care providers it represents, calling it a possible crime against humanity on social media.
During legislative hearings in August, the trade group’s leadership contended it lobbied for the immunity provisions and submitted draft language to the governor’s office with ideas, which is the same approach it takes for lobbying other issues to state lawmakers.
Cuomo and his aides have dismissed Kim’s criticisms as unfounded and politically motivated attacks rooted in Kim’s long-standing opposition of the administration.
What to know about March 25 order
As for the March 25 order, Zucker on Thursday reiterated his prior defense that it came at a time experts and state officials feared hospitals would be overrun with coronavirus patients.
One key directive stated: “No resident shall be denied re-admission or admission to the (nursing home) solely based on a confirmed or suspected diagnosis of COVID-19.”
Nursing homes are also “prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission,” according to the order, which some lawmakers and trade groups suggested contributed to the coronavirus crisis in nursing homes.
On May 10, Cuomo issued an executive order requiring one negative COVID-19 test result for hospital patient discharges to nursing homes in New York, effectively reversing a key measure in the controversial March 25 DOH order.
On Thursday, Zucker noted that coronavirus continued to spread in nursing homes recently despite significant increases in staff testing and other precautions taken since the March.
“Why is it still in all these nursing homes across the country and it goes back to community spread,” Zucker said Thursday, adding research suggested nursing home infection rates nationally tracked outbreaks in surrounding communities.
Zucker added New York and several other states with similar directives followed guidance issued by the federal Centers for Medicare and Medicaid Services and Centers for Disease Control and Prevention.
Further, Zucker said state and federal laws only allow nursing homes to admit residents if they’re capable of providing adequate care.
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This article originally appeared on New York State Team: Howard Zucker, NY health commissioner, grilled on COVID in nursing homes