Why Cuomo should be worried about a federal probe



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The Cuomo administration’s alleged misrepresentation of nursing home deaths in New York City is serious and may merit federal criminal prosecution.

On March 25, 2020, Governor Andrew Cuomo issued an executive order requiring nursing homes in New York City to admit inpatients who had tested positive for Covid-19. The order also prohibited nursing homes from requiring hospitalized residents deemed “medically stable” to undergo testing prior to admission or readmission. At the end of the summer, New York had more than 32,000 deaths from Covid, the highest in the country and more than double of any other state. If New York was its own country, it would have ranked in the top 10 for Covid deaths. The number of deaths has resulted in the second highest death rate in the country – more than three times the national average.

What caught the attention of the Department of Justice was Governor Cuomo’s claim that deaths in nursing homes in New York City were lower than in many other states and that his order of March 25 no has not contributed to the extremely high number of New Yorkers who have died from Covid. Given the virus’s disproportionate effect on the elderly, sick and frail, this seemed unlikely. On August 26, the Civil Rights Division of Justice, relying on its jurisdiction to investigate government-run facilities under the Federal Institutionalized Persons Civil Rights Act, asked the Cuomo administration for data on New York public retirement homes, which represent less than 5% of nursing homes in the state.

In September, New York produced data showing it had underestimated Covid deaths in government-run nursing homes by a third. The undercoverage appears to be due to several factors. First, when a nursing home resident who contracted Covid died after being taken to hospital for treatment, New York City did not consider it a ‘retirement home death’. Second, New York did not include deaths that occurred before the Centers for Medicare and Medicaid Services began requiring Covid reports from nursing homes in mid-May. CMS has made notification of past Covid deaths optional, and New York has apparently chosen to keep the information to itself.

But New York officials knew the data they were reporting to CMS did not go back until mid-May. The Cuomo administration misled the public when it relied on this data to claim in late September that the total number of deaths in nursing homes across the state was low.

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