Throughout the scandal over former Governor Andrew Cuomo’s handling of Covid-19 in nursing homes, Cuomo and his administration repeatedly spread bad information – misstating how its policies had worked, understating death counts, falsifying official reports and stonewalling data requests from the Legislature and the public.

That deceptive pattern continued with Cuomo’s testimony to the House Select Subcommittee on the Coronavirus Pandemic, which has been investigating the affair for much of the past two years.

In private interviews over the summer and at a public hearing last month, Cuomo and several of his aides repeated several of their earlier false or misleading claims – such as the assertion that their controversial March 25, 2020, directive sending infected patients into nursing homes had followed guidance from federal health officials.

(In fact, the guidance from the Centers for Medicare & Medicaid Services, or CMS, had emphasized that homes could accept Covid-positive patients only if they were prepared to take precautions to protect other residents. The state policy did not mention any special precautions or cite CMS recommendations.)

In addition, Cuomo’s testimony included two new arguments that were misleading or false:

  • He said he had no role in reviewing or editing a July 2020 report from the Health Department, which minimized the impact of the March 25 directive and was edited by the governor’s office to lower the death toll and remove other relevant data.
  • He denied suspending a state regulation requiring nursing homes to turn away patients that they could not safely handle.

Cuomo has already received blowback for the first claim. Nine days after his hearing appearance, the New York Times reported on the existence of emails and other documents showing his intimate involvement in writing and editing the Health Department report.

This contradicts his statements to the committee during his formal interview on June 11:

Q: [During earlier questioning,] did you testify that you had no role in the July 6 report?

A: I do not recall seeing the July 6 report prior [to] its issuance. It was Howard Zucker’s report. He then presented it numerous times. I then spoke to it numerous times, because it came up at every press briefing afterwards.

Q: And to just clarify your testimony, you did not recall reviewing the report?

A: I do not recall reviewing.

Q: Did you edit the report?

A: I don’t recall seeing it.

Q: Were you a part of any conversations involving the report [prior to its issuance]?

A: Not that I recall. I may have been, because it’s a very interesting finding. They probably came to me and said do you want to hear something interesting.

In response to this development, families of Covid victims in nursing homes have called for Cuomo to be prosecuted for lying to Congress.

Cuomo’s second novel claim focused on a section of regulations known as 10 NYCRR 415.26, which govern the organization and administration of nursing homes. One of the many rules in the 10,000-word section declares that a nursing home “shall … accept and retain only those nursing home residents for whom it can provide adequate care.”

Since early in the controversy, the Cuomo administration has repeatedly cited this “adequate care” rule in defense of their nursing home policies. They insisted that the March 25 directive was never meant to be mandatory because nursing home operators always had the option – and even the legal obligation – to turn away patients they could not properly handle.

The argument was flawed from the beginning, because at least some operators viewed the March 25 directive as an emergency order that overrode normal rules and regulations.

It later came to light that on March 18, 2020 – one week before the March 25 directive was issued – Cuomo had suspended the adequate care rule along with other regulations governing nursing home admission procedures. The suspension of subdivision (i) of Section 415.26 was part of Executive Order 202.5.

In their testimony to Congress, Cuomo and his former top aide, Melissa DeRosa, tried to argue that the adequate care rule was not covered by the suspension order.

DeRosa’s interview included this exchange:

Q: [Executive Order 202.5] appears to suspend or at the very least limit Section 415.26. Were you aware of this?

A: It doesn’t … The subdivision that is the one I just referenced that the Department of Health continues to point to was always in effect. It was a different subdivision, I think it was (ii), not (i). So this does not alter the legal obligation of the nursing home to adhere to the law, which is only accept patients you can for is what has been explained to me by lawyers and the Department of Health. [Emphasis added.]

During his interview, Cuomo and his attorney, Rita Glavin, appeared to make a similar point when asked about the suspension of 415.26(i):

Cuomo: What does Subsection I say?

Q: I believe it’s admission protocol …

Glavin: I think the word was Subdivision II? Do you have that as well?

Q: He can tell us about it.

Cuomo: I don’t believe I. I believe I is the administrative procedure. Paperwork. Not the actual right.

However, this argument appears to confuse the letter “i” with the Roman numeral “i.”

In the text of 415.26, the 11 major subdivisions are labeled with the letters “a” through “k,” and its various subparts are labeled with numbers and lower-case Roman numerals.

The adequate care rule is designated with a Roman numeral “ii,” but it’s still part of the larger subdivision designated with a letter “i.”

The proof can be found in a July 2021 memo from Cuomo’s lawyer, Elkan Ambramowitz, arguing that federal prosecutors should not pursue charges over the nursing home scandal. Abramowitz cited the adequate care rule as “10 NYCRR 415.26(i)(1)(ii)” – that is, subparagraph (ii) of paragraph (1) of subdivision (i) within Section 415.26.

As a lawyer and former governor, Cuomo ought to be familiar with how regulatory texts are labeled.

Cuomo’s strategy of denial and deflection about Covid in nursing homes ignited one of the political scandals that led to an impeachment probe and, ultimately, his resignation as governor in August 2021. Three years later, it appears that he has not yet changed course.

 

About the Author

Bill Hammond

As the Empire Center’s senior fellow for health policy, Bill Hammond tracks fast-moving developments in New York’s massive health care industry, with a focus on how decisions made in Albany and Washington affect the well-being of patients, providers, taxpayers and the state’s economy.

Read more by Bill Hammond

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