As the long-time top aide to former Governor Andrew Cuomo, Melissa DeRosa ought to have useful information to share about the state’s pandemic response – especially about what went wrong and how the state could be better prepared for the next virus.

Unfortunately, her new memoir mostly repeats familiar talking points – many of which are demonstrably false or misleading – and further clouds the historic record.

Since DeRosa is pitching this old story to new audiences, it’s worth revisiting what she got wrong at the time and continues to get wrong now.

A prime example is her discussion of the state’s notorious directive to nursing homes, issued on March 25, 2020, compelling them to admit infected patients during the deadliest period of the first wave.

The directive was not the only source of Covid in these acutely vulnerable facilities, but it unquestionably aggravated a bad situation and likely contributed to an appalling fatality rate among residents.

Viewed in the best possible light, this decision was a mistake a desperate attempt at triage made under enormous pressure based on projections of the need for hospital beds that thankfully turned out to be exaggerated.

Rather than acknowledging that, DeRosa and the rest of the Cuomo administration tried to rewrite history and withhold facts.

When the policy first came under fire, they mischaracterized how it worked, minimized its impact and tried to shift blame to the federal government.

They also systematically concealed the true death toll in nursing homes for most of a year – defying requests under Freedom of Information Law (from the Empire Center and others) as well as repeated inquiries from the Legislature.

It was only in early 2021, after Attorney General Letitita James issued a critical report and the Empire Center won a court order, that officials finally revealed the full truth: that the full nursing home toll was thousands higher than previously reported acknowledged.

Defending all of this in her book, DeRosa missed an opportunity to trace the history of the policy. Officials of the Greater New York Hospital Association have said they pitched the idea to the governor’s office shortly before the directive was issued by the Health Department. That chain of events goes unmentioned in DeRosa’s memoir.

Meanwhile, she repeats several of the Cuomo administration’s discredited claims.

She asserts, for example, that the March 25 directive was “based on” guidance from the Centers for Medicare & Medicaid Services.

In fact, the two policies differed in crucial ways. The CMS guidance was clearly non-mandatory and came with caveats – that nursing homes should accept Covid-positive patients only if they could do so safely and were prepared to take special precautions. 

The state directive used prescriptive language. It did not cite the CMS guidelines, mention the need to exercise discretion or identify any special precautions.

DeRosa argues that nursing homes were required to turn away patients they could not properly handle under a long-standing state regulation. But that regulation – 10 NYCRR 415.26(i)(1)(ii) – was one of many that Cuomo had suspended a week earlier, as part of Executive Order 202.5

She further implies that the March 25 order was never put into effect:

The worst-case scenario that the Health Department’s March 25 admissions advisory was aimed at never came to pass. Because we bent the curve when we did, there were always additional hospital beds. Nursing homes had other options available to them.

In fact – as the Health Department eventually confirmed – more than 9,000 patients were transferred under the policy before it was rescinded in early May 2020. The transfers continued for weeks after the first wave had peaked, and they occurred throughout the state, including areas where hospitals had plenty of beds.

DeRosa also defends the state’s deceptive reporting of nursing homes deaths – which counted only those who died physically within the nursing homes and omitted those who died after being transferred to hospitals. She claims the latter group would have been especially challenging to count.

At the height of the pandemic, this was a forensic nightmare that required nursing homes to track where residents went after leaving the nursing home and what happened to them. If a person went to a hospital and died, they would already be counted in hospital deaths. So the nursing home would need to trace the former resident, find out if they lived or died, and then coordinate with the hospital over who would report the death to ensure there was no double-counting.

To the contrary, the state had ready access to the relevant numbers. Starting in mid-April 2020, the Health Department had required nursing homes to report all resident deaths – both in their facilities and in hospitals – on a daily basis through its Health Emergency Response Data System, or HERDS. The Health Department routinely used that system to post the figures for in-facility deaths but withheld the count of hospital deaths.

DeRosa contends that the data on hospital deaths needed to be audited for accuracy before it was released. However, the in-facility death tolls from HERDS were similarly subject to errors, and the department released them without auditing. Also, concerns about accuracy are not valid legal grounds for withholding records from the public – because any large data set is bound to be less than perfect.

Finally, she asserts that the controversy about the March 25 order was primarily driven by then-President Donald Trump and his Republican allies, who politicized a tragedy to undermine Cuomo and deflect blame.

In fact, the earliest criticism of the order came from the nursing home industry itself, which warned that admitting infected patients would put other residents at risk. As the state’s policy became more widely known, that concern was echoed by legislators of both parties along with family members of residents who were getting sick and dying.

Although Trump frequently sparred with Cuomo throughout the pandemic, he did not personally mention the nursing home policy until a series of tweets in mid-August 2020 – by which time the state had been stonewalling data requests from the press and the Legislature for several months.

The finger-pointing actually began with Cuomo, starting in May 2020 when he asserted that responsibility for the March 25 directive ultimately lay with the president.

“New York followed the president’s agencies’ guidance,” he said at one briefing, alluding to CMS. “So that depoliticizes it. What New York did was follow what the Republican administration said to do. That’s not my attempt to politicize it. That’s my attempt to depoliticize it. So don’t criticize the state for following the president’s policy.”

The Trump administration slammed Cuomo’s comments at the time, but they did so through federal health agencies rather than the White House.

Although Trump lost re-election in November and left office in January, the state’s stonewalling on nursing home data continued. On Jan. 13, 2021, the Health Department issued the fourth in a series of six-week postponements of the Empire Center’s FOIL request, which had been filed the previous August. 

Those delays might have gone on indefinitely. But on Jan. 28, the attorney general issued her report confirming that the Health Department was undercounting nursing home deaths, prompting then-Commissioner Howard Zucker to acknowledge a toll that was about 4,000 or 50 percent higher than the state had previously reported.

Still, DeRosa and the rest of the Cuomo administration held back the date-specific and facility-specific details until Feb. 10, after the Empire Center and the Government Justice Center won a court order forcing their release.

This months-long cover-up was one of a series of cascading scandals – involving Cuomo’s handling of the pandemic, his use of state resources to write a memoir and his behavior toward female staff members – that led the Assembly to open an impeachment inquiry.

Cuomo’s resignation in August 2021 resolved the political crisis, but not the disastrous weaknesses in the public health system that the pandemic exposed.

The state still needs to fully and honestly investigate everything that happened in 2020, including the March 25 directive – not primarily to lay blame, but to glean lessons and avoid repeating mistakes.

If New Yorkers hope to be better prepared for the next deadly virus, DeRosa’s distorted and self-serving account cannot be the last word.

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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