As COVID-19 was breaking out in New York state last March, Governor Andrew Cuomo signed an executive order requiring nursing homes to accept patients who were presumed to have the virus. Following the order, about nine thousand COVID patients were brought into nursing homes across the state, likely leading to the virus’s rampant spread in those facilities.
Governor Cuomo responded to his mistake by listening to the demands of one of his top donors: the lobbying group for the nursing home industry. As the Daily Poster reported in May, he granted full corporate legal immunity to nursing homes, all the way up to the C-suite. At the time, New York Democratic assemblyman Ron Kim warned that the liability protections removed a key deterrent to corporate misbehavior and effectively shielded nursing home executives from legal consequences if their cost-cutting, profit-maximizing decisions endangered lives.
Now the situation has exploded into a full-scale scandal: last week, Cuomo’s administration was caught on tape admitting it was withholding data about how many nursing home residents had been infected with COVID, and how many had died.
After Kim told the New York Post that it appeared that Cuomo was “trying to dodge having any incriminating evidence,” the governor reportedly lashed out at Kim both publicly and privately, including an alleged late night phone call in which Cuomo threatened to “destroy” Kim. (A senior Cuomo adviser released a statement denying those threats and questioning Kim’s credibility.)
With federal law enforcement officials reportedly launching a probe into the Cuomo administration’s handling of nursing home deaths, the controversy is expected to be part of this coming week’s confirmation hearings for attorney general nominee Merrick Garland.
For his part, threats of potential retribution haven’t persuaded Kim to back down from holding Cuomo accountable. On Friday, he called the governor an “abuser” on ABC’s The View. Now, in a new interview, Kim explains what was really going on in New York’s nursing homes this spring, and how Cuomo’s corporate immunity order allowed nursing home executives to save money even at the expense of their residents’ safety.
New details have emerged about what was going on in New York’s nursing homes last spring, as the pandemic was ravaging the state. What were you seeing and doing last spring?
Let’s start from the beginning. We are notified that COVID is spreading, and everyone is paranoid, no one knows what’s going on. The governor asked for extraordinary powers, and he wanted $40 million of emergency money right away to get ahead of COVID. My colleagues at the time said, “You can’t do this, you can’t support that.” But I actually sponsored that bill. I stood up and defended the governor and the commissioner, saying, “My constituents are completely worried. And despite whatever differences we may have with Cuomo’s administration, we need someone, in light of what’s going on in Washington, to step in.”
A month into it, the nursing home executive order comes out, the March 25 executive order, the infamous one that directs untested COVID patients to nursing homes. And we eventually found out there were nine thousand of these patients that were transferred. That happened, and right away, everyone said this is wrong.
Constituents started reaching out to me, saying things like, “My mom is stuck in a nursing home, and I know that COVID is transmitting in there and I can’t get access. She’s sleeping in a hallway, exposed, no PPE.”
They are outside, protesting, trying to get in. So I get involved and I realize what’s going on. And that’s when I realized the March 25 order and the impact this is having on the ground. And that’s when we started exposing the undercounting.
Just around that time, when I was helping all these constituents, my uncle, who was in a nursing home, passed away with presumed COVID. So I lived that experience personally: the trauma, the pain, of losing someone who died alone in excruciating pain. There are fifteen thousand other stories like that in New York state.
In April, Governor Cuomo put a provision into the state budget that granted legal immunity to all health care facilities, including nursing homes, and including the executives of those facilities. How did the corporate immunity order affect the situation, and how does it connect to the Cuomo administration underreporting nursing home data?
Up to nine thousand COVID patients were being sent to nursing homes. And the nursing homes were telling the administration — which now the AG’s report shows — that we can’t take these people in. Like, “Half of our staff got COVID, they’re out. We don’t have enough staff, we don’t have the PPE.” And at that moment, Cuomo decided to give them legal immunity. That was their solution to that crisis, to the industry asking to be included in broad legal immunity.
They decided to protect the business interests of those who should have done everything possible, spent every dollar, to save people’s lives. But the moment they got the legal immunity, it was clear that they felt like they didn’t have to invest anymore in PPE, or hire more staff members. They completely shut down. They had a license to kill. That’s what the immunity was.
Can you clarify what information about the nursing homes was not being released?
They made a decision around May to not release the fatalities of nursing home residents who died in a hospital. In other states, nursing home residents who were transferred and died in a hospital were counted as nursing home residents. But Cuomo’s administration decided to separate that out. They made a unilateral decision to not include that.
We were ranked at number one, number two, for nursing home deaths consistently for a few weeks. And then all of the sudden, once they decoupled the numbers, we were in the middle of the pack. When we asked the commissioner during an oversight hearing in August, “Why aren’t you combining and disclosing the entire data?” their answer was, “Put your questions in writing, we will respond in a couple of weeks.” That’s how we left the oversight hearing.
It took them six months, after an AG report and lawsuits, and endless FOILs [Freedom of Information Law requests], to finally release the undercounted numbers, which was the premise of our private meeting with [Cuomo aide] Melissa DeRosa that included the chairs of the oversight committees from the hearing last week, last Wednesday.
During that call, DeRosa seemed to say that the administration made a deliberate decision not to release the information for fear of political or other consequences. Is that how you read it?
It almost felt like that movie with Tom Cruise and Jack Nicholson, A Few Good Men. They had the script, my colleagues were just grilling and asking questions and interrupting. And at a point DeRosa jumps in and says, “Do you want the truth? You know, I’ll tell you the truth.” And that’s where she said, “This is what happened. Donald Trump was targeting us. And we could not let the Department of Justice have the data because we didn’t know how they were going to use that against our administration.”
Do you think they’re wrong to have feared the Justice Department misusing, or politically weaponizing, the information?
No. I think Donald Trump toxicity is real. The right-wing insurrectionist type of conservatism that we saw is all real. But what they did was not share information in real time that we could have used to legislate. If they shared all that data, we would have passed different policies. We would have gone in a different direction. We could have repealed legal immunity [for nursing home executives] entirely. Instead, they chose to not share that information with us because they didn’t want the Department of Justice to take a look at it.
Why was the Cuomo administration hiding data about nursing home deaths from state lawmakers?
That’s one of the questions that we have remaining. I do not know who was in that room pushing those policies. I don’t know exactly why they made a choice to hide that information.
I think others have surmised that it would make him look bad politically. He was in the middle of a book tour. He was trying to become the national hero against Trump. Having the highest number of [nursing home] deaths would probably not fit that narrative. I think that’s the best-case scenario, that it was just something out of vanity and personal fame.
I think the worst-case scenario is something that’s way, way more disturbing, which is that they made really horrible decisions. For example, how did these experimental drugs get into state-owned nursing homes, and veterans died taking them? Who made that decision and who had access to the governor’s office, directing that type of policy? I think there’s a lot to uncover there. My gut feeling is that there’s a lot more than just protecting Cuomo the politician. I think they made a lot of horrible policy decisions driven by industry and businesses. And that’s what they’re afraid for the public to know.
In August, you passed the bill to limit the corporate immunity order. The legislature didn’t have access to information at that time about what was happening in the nursing homes. With access to that information, would you have been able to push a full repeal of the order?
Right. If we had the full data set, I think we had a much stronger argument to repeal legal immunity.
What about Cuomo’s argument that the immunity order was necessary, because it was the only way to force nursing homes to take patients who might not have otherwise had somewhere to go?
There are two things. And both illustrate the incompetence of his managerial skills. The first part is they had already given out the immunity for volunteers and hospital workers through an executive order on March 23. I don’t think anyone argued against that. Yes, we need to recruit a lot of people and they need to feel safe that when they’re treating COVID, that they couldn’t be sued the next day if it wasn’t something horrible. You know, I think we understood that we needed to get volunteers. We extended the Good Samaritan Law, fine.
But the moment that they expanded beyond that and included the executives, the businesses, the corporations behind them, that’s when you knew this was no longer about volunteerism, but about protecting business interests. And the data showed that despite what the governor put out there, we had space in hospitals, we had a surplus of ventilators.
The trend was going in a different direction, but he still moved people out of nursing homes because, in my opinion, they were making space for the high-end surgeries, other things that are more profitable in the hospitals.
What do you make of Cuomo’s reaction to the scrutiny his administration is now receiving?
It’s a complete distraction. Acknowledge your mistakes, make an apology. What he has done over and over is try to implicate the assembly, the Senate, and punt and distract from the actual problem at hand. He does not want to talk about whether Melissa [DeRosa] said there was a cover-up for political reasons. No reporter has been called on to grill him on that question.
He is good at punting and distracting, so he can get the public to focus on something else. But the facts are the facts, and it’s not going to go away and he’s in the wrong, and he needs to face the reality and the truth that he did something that could constitute an obstruction of justice by hiding information from the Department of Justice for his own political gain.