Cuomo's handling of nursing home COVID outbreak leaves health commissioner in the firing line

New York State Health Commissioner Howard Zucker faced a barrage of questions when he appeared for a hearing about the Cuomo administration’s handling of the coronavirus pandemic in the state, with lawmakers slamming him -- and one saying his responses were "totally without credibility."

During a budget hearing Thursday, lawmakers slammed Zucker and Gov. Andrew Cuomo for their handling of the pandemic and criticized them after the thousands of COVID-19 deaths in nursing homes across the state.

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"We are the only state in the nation which counted (fatalities in) nursing homes in a convoluted way," Schenectady Republican Sen. James Tedisco said, according to The Times Union, challenging Zucker and other members of Cuomo's administration to admit "your culpability in these deaths."

Last month, New York Attorney General Letitia James said nursing home COVID-19 deaths in the state were undercounted by as much as 50%. And things escalated after a report that a top aide to Cuomo told leading state Democratic lawmakers that the administration had withheld data on COVID-19 deaths at nursing homes to avoid federal scrutiny.

Last year, Cuomo directed nursing homes in the state to accept patients who had or were suspected of having COVID-19. The decision created an onslaught of COVID-19 cases that infected thousands of elderly patients and resulted in hundreds of deaths among the state's most vulnerable population. 

The Times Union also reported that state Sen. Tom O'Mara, a Republican, asked Zucker whether he had been subpoenaed by either Democratic-led state legislative chamber and if the Health Department has responded to a federal Department of Justice letter inquiring about nursing home deaths.

After Zucker declined to answer, citing legal concerns, O'Mara concluded by telling the commissioner he considered "virtually everything you said today to be totally without credibility," according to the Times Union.

Meanwhile, Republicans on the House Oversight Committee are urging Chairwoman Rep. Carolyn Maloney, a Democrat, to subpoena Cuomo to testify before the panel about the numerous coronavirus-related deaths in his state's nursing homes.

A spokesman for Cuomo slammed the request as "empty political theater." 

"Republicans are trying to distract in every way possible from the Congressional investigation into their January 6th coup attempt," Cuomo spokesman Jack Sterne told Fox News. "We’re focused on managing this public health crisis, including getting as many shots into arms as humanly possible and carefully reopening the economy, and we won’t let these antics distract from that work."

The FBI and U.S. Attorney's office in Brooklyn are believed to have begun an investigation into how the Cuomo administration handled the state’s nursing home crisis during the pandemic.

The investigation is not yet far along and is focused on top members of Cuomo’s coronavirus task force, the Albany Times-Union reported, citing a source with direct knowledge of the matter. Neither Cuomo nor any administration official has, at this point, been accused of any wrongdoing by prosecutors.

Members of Cuomo's task force include Zucker and Secretary to the Governor Melissa DeRosa. The latter drew scrutiny this month after she seemingly admitted the governor’s team withheld information related to COVID-19-related deaths at nursing homes.

"As we publicly said, DOJ has been looking into this for months. We have been cooperating with them and we will continue to," Cuomo senior adviser Rich Azzopardi said in a statement.

It is not clear whether Azzopardi's statement refers to the Brooklyn U.S. Attorney's probe, which the Times-Union describes as "in its early stages." Azzopardi's statement did not specify whether Cuomo's office was in touch with FBI or US Attorney officials regarding a fresh investigation.

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The letter also comes after Republicans in the New York State Assembly announced last week that they will form an impeachment commission to "gather facts and evidence" surrounding Cuomo’s handling of the coronavirus crisis and underreported COVID-19 nursing home deaths.

The inquiries and investigations were spurred by James’ report, released last month, which revealed that as of Jan. 27, 2021, there were 5,597 confirmed deaths due to COVID-19 in nursing homes and an additional 2,783 presumed deaths. In assisted care facilities, there were 160 deaths and 52 presumed deaths.

James' report said government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.

Cuomo has defended the nursing home policy as in line with guidance from the Trump administration at the time.

The Office of the Attorney General (OAG) asked 62 nursing homes to provide data about deaths in their facilities. 

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The report, which revealed the findings of an investigation into allegations of patient neglect and other "concerning conduct" that jeopardized the health and safety of both patients and employees, said some facilities failed to comply with health protocols to stop the spread of the virus. 

Nursing homes that had low U.S. Centers for Medicaid and Medicare Services Staffing ratings were found to have higher COVID-19 fatality rates. 

In addition, lack of sufficient personal protective equipment for staff, as well as low availability of testing, could have increased the patients' risk of contracting the virus, the report said. 

About 70% of the nearly 35,000 COVID-19 deaths in New York state were people aged 70 and older, according to state data as of Jan. 28.

Investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern are still ongoing, James added.

"As the pandemic and our investigations continue, it is imperative that we understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate," James said in a statement. "While we cannot bring back the individuals we lost to this crisis, this report seeks to offer transparency that the public deserves and to spur increased action to protect our most vulnerable residents."