The most shocking thing about state Attorney General Letitia James’ report on the coronavirus pandemic in New York nursing homes is what it did not contain: a definitive count of how many thousands of residents have died of COVID. Apparently, not even the highest-ranking legal official in the state was able to pry that elusive number out of the Cuomo administration’s clutches.

The report estimates that the true toll could be 50% higher than what the state Department of Health admits. But it makes no mention of the fact that DOH had a more complete tally that it was refusing to share with the public.

Late yesterday, after James’ report was published, Health Commissioner Howard Zucker finally changed his story. He acknowledged a nursing-home death toll of 12,743. That’s about 4,000 higher than his department previously acknowledged, which is almost one-and-half times the death toll on 9/11.

Zucker hinted that the nursing-home count might go higher still, due to an ongoing audit that had not previously been revealed to the public.

Although James gets credit for finally shaking these basic facts loose, it’s puzzling that she did not obtain them before issuing her report.

Did James’ team neglect to ask for the data? Or did Gov. Cuomo stonewall her the same way he has done to members of Congress, both houses of the Legislature and ordinary citizens who filed requests under the Freedom of Information Law requests (including this writer)?

James’ report did make waves by forthrightly confirming that the state’s official toll — which stood at just over 8,700 as of Tuesday — grossly understates reality. As was widely known, the state Department of Health counts only deaths that occur within the facilities, leaving out thousands of other residents who died after being transferred to hospitals — a methodology used by no other state or federal agency.

The AG further found that DOH is misstating the in-facility deaths at many nursing homes, sometimes substantially. Based on a close examination of 62 homes, the report says deaths “appear to be undercounted by DOH by approximately 50%.”

It was a sharp estimate: The new number from Zucker is a 46% increase.

But the attorney general should not have had to extrapolate. She could and should have been given the state’s full count, including hospital transfers, which homes have been mandated to report throughout the pandemic.

The lack of complete data undermined one of the report’s key recommendations — a call for the state to establish minimum staffing ratios in nursing homes, which is a long-standing priority for nurses’ unions.

In support of this policy, the report shows what appears to be a correlation between lower levels of staffing and higher death rates. Yet that analysis is based on mortality numbers that the report itself had shown to be inaccurate.

The report is also disappointingly noncommittal on the state’s notorious March 25 guidance memo, which for six weeks compelled nursing homes to admit coronavirus-positive patients being discharged from hospitals. The policy was widely panned by experts for putting other residents at risk, yet the Cuomo administration insists it had no significant effect on death rates.

The report cautiously says the policy “may have contributed to increased risk of nursing home resident infection and subsequent fatalities” — but adds that resolving that question would require “additional data and analysis.”

Left unmentioned is the fact that those additional data were already in the hands of state officials – the same officials who authored the March 25 memo — and that those officials were steadfastly refusing to share what they knew with the public.

For whatever reason, James seems to have stopped short of fully flexing her power to gather evidence for her investigation — which, after all, Cuomo has asked her to do. She was not the first.

The federal government, too, has been reporting incomplete data on nursing home deaths, in New York and elsewhere — with gaps it has authority to fill with the stroke of a regulatory pen.

Closer to home, the Legislature had the power to subpoena records from the Health Department — as state Sen. James Skoufis threatened to do earlier this week. It has been five months since Skoufis and other lawmakers demanded full numbers from Zucker, and he’s been putting them off ever since.

The ultimate responsibility, however, lay with Cuomo.

It could not have been clearer, both legally and morally, that the public was entitled to know how many of their fellow New Yorkers died during a public health catastrophe. Cuomo should not have needed prodding by the attorney general to do the right thing.

© 2021 New York Daily News

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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The Empire Center is an independent, non-partisan, non-profit think tank located in Albany, New York. Our mission is to make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.

Empire Center Logo "Readers will recall that the Empire Center is the think tank that spent months trying to pry Covid data out of Mr. Cuomo’s government, which offered a series of unbelievable excuses for its refusal to disclose...five months after it sued the government, and one week after a state court ruled that the Cuomo administration had violated the law and ordered it to come clean—Team Cuomo finally started coughing up some of the records."   -Wall Street Journal, February 19, 2021

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