Cuomo administration’s handling of nursing home deaths calls for serious investigation

Going back more than a hundred years, New York has held the dubious distinction of being a corruption leader among US states and has struggled to ensure integrity in state government. In recent years, high-profile bribery cases have ensnared the leaders of both legislative bodies and Governor Andrew Cuomo’s former right-hand man. Now, a different kind of potential abuse of the public trust has come to light, and this time Governor Cuomo himself is in the hot seat.

Late last month, New York State Attorney General Letitia James issued a scathing report about how nursing homes in the state handled Covid-19, including a finding that the state’s Department of Health undercounted Covid deaths at nursing homes by approximately 50%. While the discrepancy didn’t change the overall number of New York Covid-19 deaths, it attributed deaths where a nursing home resident had been transferred to a hospital for treatment to the hospital instead of the nursing home.

This undercount (a term New York State Health Commissioner Dr. Howard Zucker has pushed back on) downplayed the high rates of transmission at nursing homes, at a time when the state mandated that nursing homes re-admit patients with Covid-19 who had been receiving treatment in a hospital, a policy that was reversed a couple of months later. (Cuomo has long said the decision to send recovering Covid-19 patients back to nursing homes was based on federal guidance to do so.)

Last year both the US Department of Justice and New York State legislators issued requests for information about nursing home Covid statistics in New York State, but the Cuomo administration, according to a recent admission by a top Cuomo aide, delayed the release of the figures out of concern about a possible politically motivated federal investigation.

Recriminations over the delay in providing accurate information have begun, with people on both sides of the political aisle demanding accountability from the governor. Luckily, there are a variety of ways in which potential government corruption like this — whether ultimately it is determined to be an intentional, criminal act, a bureaucratic misstep, or something in between — can be fully investigated.

If the Cuomo administration failed to provide accurate information to the US Department of Justice as part of a DOJ inquiry — an allegation the Cuomo administration has denied — the DOJ would have jurisdiction to investigate any false or misleading statements made in the course of those communications, and it is a federal crime to lie to federal officials about any material matter, or to obstruct a DOJ investigation.

Moreover, to the extent that false or misleading statements were made to the state attorney general’s office as part of their investigation, the AG may have jurisdiction to pursue that potentially criminal matter as well.

In addition to its criminal and civil enforcement functions, the AG’s office serves in an oversight role with respect to certain parts of New York State government, giving it broad authority to investigate and propose policy changes to improve governmental functioning. Nursing homes are one of these areas, as part of the AG’s Medicaid Fraud Control Unit. Given that the AG said in her January 28 report that the office’s investigation into nursing home deaths due to Covid-19 is ongoing, the AG may decide to investigate the Cuomo administration’s response to state legislators as part of its pre-existing matter. Possible remedies may include restitution or proposed policy changes to increase transparency.

New York State also has an inspector general’s office that has a mandate to ensure that “State officials and employees meet the highest standards of integrity, efficiency, and accountability.” To fulfill its mission, the IG’s office conducts investigations of fraud, corruption, abuse and mismanagement in state government, including the executive branch. Investigating whether the governor, his secretary and/or leadership at the Department of Health engaged in the alleged obfuscation or delay is right in the IG’s wheelhouse, and could lead to proposals for policy changes, or referrals for discipline or prosecution if the facts warrant such a result.

Finally, the New York State legislature has oversight authority of the executive branch, and some legislators have proposed conducting an investigation, including issuing subpoenas and convening hearings, into the matter. Legislators have also proposed taking steps to strip Gov. Cuomo of some of the emergency powers that were extended to him for the purpose of responding to the pandemic.

Right now, the drumbeat of condemnation is loud, but it remains to be seen what concrete actions will result. If New Yorkers want transparency and accountability from this administration, our public integrity systems provide the tools to make that happen. If we want New York to be a governmental integrity leader instead of a corruption leader, we should use those tools.