We’ve been covering Andrew Cuomo’s disastrous handling of the pandemic, specifically in terms of how badly he impacted nursing home residents, for quite a while now. His executive orders that forced nursing home to readmit people infected with COVID-19 were literally deadly, leaving far too many families in mourning. But the question now is whether this was simply a case of a politician making really stupid decisions (because that never happens…) or was there something criminal taking place? As the Wall Street Journal reports this week, Cuomo may well have to answer that question for federal investigators. Did Cuomo’s team intentionally stonewall federal officials who were requesting pandemic data related to nursing homes? Was there a coverup? If so, Cuomo may have to worry about a lot more than potential impeachment. (Subscription required)
On Aug. 26, Justice’s Civil Rights Division, relying on its jurisdiction to investigate government-run facilities under the federal Civil Rights of Institutionalized Persons Act, asked the Cuomo administration for data on New York’s publicly run nursing homes, which account for less than 5% of nursing homes in the state.
In September, New York produced data showing it had underreported Covid deaths in government-run nursing homes by a third…
But New York officials knew the data they reported to CMS only went back to mid-May. The Cuomo administration misled the public when it relied on that data to claim in late September that the state’s total nursing-home deaths were low.
The WSJ report certainly makes a strong case for a federal investigation. The situation first started to go south last August, when the Justice Department’s Civil Rights Division requested New York’s COVID data relating to publicly-run nursing homes. (They account for only 5% of nursing homes in the state, with the others being privately operated.) Cuomo delivered the numbers the following month. But as we now know, he severely undercounted the nursing home deaths, failing to report anyone who contracted the virus in an elder care facility who was later removed and died elsewhere. The number provided was barely one-third of the total deaths.
Further, the data was incomplete to begin with. The numbers Cuomo turned over only went back to the middle of May, though people had obviously been dying in nursing homes for months before that. In October, perhaps smelling a rat, the Justice Department requested full data on nursing home deaths for the more than 600 privately operated facilities in the state. Cuomo stonewalled them for months, claiming that the request was a “politically motivated attack.”
That certainly sounds like a coverup, doesn’t it? And both state and federal health officials were relying on that data when crafting new recommendations on reducing the spread of the plague. Now Cuomo’s own Democratic Attorney General has issued a scathing report indicating that the nursing home deaths were undercounted by more than 50%.
But does all of this mean that any laws were broken? According to the WSJ report, there are two possibilities that could merit prosecutorial action. First, if it can be shown that Cuomo knowingly provided false information to the federal government, that’s a crime. But even if that can’t be established to the satisfaction of a court, Cuomo could also face prosecution if it can be established that he willfully withheld information from the Justice Department. The stonewalling alone could land New York’s governor in legal hot water.
Of course, there’s still the issue of “prosecutorial discretion” to consider. Will Joe Biden’s Justice Department actually go after a fellow Democrat who was once being celebrated as the “shadow president” during much of Donald Trump’s last year in office? And how much political fallout would Joe Biden face if he fails to act on this? Time will tell.