ALBANY — Gov. Andrew M. Cuomo and his administration will sue the federal government over last spring’s COVID-19 guidelines — such as the state directive that allowed virus-positive nursing home residents to return to their facilities — if the federal guidance was malpractice, the governor said Wednesday.
Over the last week, Democrats and Republicans continue to increase pressure on Cuomo and legislative colleagues for an independent investigation into the state’s COVID-19 policies in nursing homes and its six-month delay in releasing total virus death counts in congregate living facilities.
Lawmakers have asked state Attorney General Letitia James or other special prosecutor to review the state Health Department’s March 25 memo that allowed virus-positive nursing home patients to return to their facilities to recover.
Cuomo has argued that the order was adopted based on federal guidance from Centers for Disease Control and Prevention, as well as Centers for Medicare and Medicaid Services, at the time.
“If you want to say it was wrong, you’d have to say (former President Donald) Trump was wrong in the CDC and CMS (guidance),” Cuomo said Wednesday during a phone call with reporters. “My health experts don’t believe it was wrong and we’ve gone through all the facts several times. If we did believe it was wrong, then we would say we believe it was wrong and we made a mistake following CDC and CMS guidance.
“I would sue the federal government for malpractice on the CMS and CDC guidance,” he added, “the same way I sued the federal government on SALT and immigration policy.”
Representatives from Cuomo’s office did not respond Wednesday to multiple requests for comment about an investigation to determine if the March 25 memo was based on federal malpractice, or if the state would enter litigation against former President Trump or current President Joe Biden’s administration.
“(State Health Department Commissioner Dr. Howard) Zucker does not believe the March 25 order was wrong,” Rich Azzopardi, Cuomo’s senior adviser, said in a statement Wednesday afternoon. “Even with the advantage of 20/20 hindsight, health experts do not believe it was wrong. We believe it saved lives and the facts demonstrate that.
“If, with the advantage of hindsight, we concluded the March 25 order was wrong, (Health Department) Commissioner Howard Zucker would admit that and we would take action against the federal government for malpractice in issuing flawed guidance.”
COVID was already in the nursing homes by March 25, Azzopardi said, citing a self-published state Health Department report from last summer.
“That is a proven fact,” according to Azzopardi. “Hospital beds were critical. And that is a proven fact. People needed hospital beds with ventilators and critical care nursing staff to save their lives. We provided that. Unlike other states and countries our hospital system was not overwhelmed and we went from the highest infect rate to the lowest and saved lives. That is the irrefutable truth.”
Assemblyman Ron Kim, D-Queens, was one of nine Democrats in the Assembly to send a letter to colleagues Tuesday, accusing Cuomo and his administration of obstruction of justice as the basis for rescinding the governor’s expanded spending powers and authority to issue statewide directives granted by the state Legislature last March because of the COVID-19 pandemic.
Kim has criticized the March 25 order for months, saying it allowed COVID-19 positive patients into unprepared adult care facilities and potentially caused additional virus fatalities. In a Tuesday report from the New York Post, Kim said Cuomo’s administration failed to release nursing home data to the U.S. Department of Justice after the department opened an inquiry Aug. 26 requesting the numbers of public congregate facilities.
“As legislators, we have a duty to uncover the truth behind the nursing home deaths and the governor’s explanations do not add up,” Kim said in a statement Wednesday. “The governor can smear me all he wants in an effort to distract us from his fatally incompetent management. But these facts are not going away because they are the facts — unacceptable facts that hold him accountable.”
The state’s 2020-21 budget included legal immunity for nursing home facilities because of the pandemic. Kim on Wednesday said Cuomo put the legal protections in place because of political and budgetary bargaining.
“He surreptitiously slipped legal immunity into our state budget bill for hospital executives and for-profit nursing homes at the request of powerful lobbyists like the Greater New York Hospital Association — a group that donated $1.25 million toward his campaign,” Kim said of the governor. “All while his administration lied about the data.”
Kim said Cuomo and the state’s withholding of the state’s total COVID nursing home deaths benefitted those same health care campaign donors.
“While he claims he was taking time to answer the Justice Department, we saw him gallivant around on a book tour and victory lap across prime time cable shows,” Kim said. “Again, all while his top aide deliberately hid the information in fear of political and legal consequences.”
Hundreds of families have reported cases of neglect and improper COVID-19 precautions, including minimal personal protective equipment, inside state nursing homes since the pandemic began in the state last March.
“That bill was passed in the budget by the Assembly and the Senate, so if he wants to accuse his Assembly colleagues and Senate colleagues of the same conduct he’s been accused of — pay to play, that’s what he’s doing,” Cuomo said.
More than 15,000 New York nursing home residents died from COVID-19 complications since the state’s first official case March 1, including those outside the facility in hospitals or hospice and presumed virus fatalities when testing was scarce at the start of the pandemic.
At the end of January, the state reported just under 9,000 nursing home residents died of COVID-19 complications.
Cuomo spent part of Wednesday’s briefing railing against Kim and defending his administration against comments about the state’s sluggish release of COVID-19 nursing home data.
“My office, more than me, has had a long and hostile relationship with Assemblyman Ron Kim,” Cuomo said. “As far as his point that we didn’t provide the Justice Department with information, that is 100% wrong. He knows it. We paused the state Legislature’s request for information, which he’s now said 15 times, so the Assembly and the Senate knew we paused the state legislative (request).”
The governor called Kim to discuss the issue, he said Wednesday, where he asked the assemblyman to update his statements about the nursing home issue.
“I said on the phone there is still integrity and honor and decency in politics, but that’s that for Mr. Kim,” Cuomo said.
Kim’s claims are baseless, Azzopardi said in his Wednesday statement.
“Over the last six days he has baselessly accused this administration of pay to play and obstruction of justice,” Azzopardi said. “These continued falsehoods are why the governor chose to speak out today. We will not allow an unscrupulous politician to deceive New Yorkers or distort the truth.”
More than 101,000 residents live in one of 613 nursing home or adult care facilities in the state. About 37,000 nursing home staff — or 24% of the state’s nursing home workforce — were infected with COVID-19 by mid-May.
Sen. Jim Tedisco, R-Glenville, and Kim sponsor legislation to establish an independent, nonpartisan investigation with subpoena power. Lawmakers from both sides of the political aisle have supported an independent investigation, but the measure is largely backed by Republicans. Kim is the lead sponsor in the Assembly, which was first introduced July 24.
It remains in the Health Committee.