Later today, there is a budget hearing for the Department of Health (“DoH”). The hearing will concern important financial decisions and the Administration’s intention is to focus on those budget issues. To facilitate a productive hearing, I have been asked to clarify certain issues related to the ongoing nursing home discussion.
There is no doubt that in raising this issue I am mindful that we are all living through both a crisis and a tragedy. As the United States passes the grim milestone of 500,000 COVID-related deaths, it is a painful reality that each of these deaths has very real and very personal consequences for the families and loved-ones who bear the loss and for our community as a whole. While we all feel a sense of collective grief, I am truly sorry for each instance of individual loss caused by this pandemic.
I served as Secretary to Governor Cuomo early in his Administration, and prior to that I served as Chief of Staff while he was Attorney General. Earlier in my career, I was an Assistant United States Attorney in the Southern District of New York. I have also worked as a lawyer in private practice. Currently, in addition to my work in the private sector, I am Chair of Empire State Development. In the early months of the COVID pandemic in New York, I was asked to assist the Administration by Co-Chairing New York Forward. More recently, I was asked by the Governor to consult on the nursing home matter. In doing so, it is evident that certain facts warrant clarification.
To begin, last year, when it became clear that New York was in the midst of a crisis, DoH issued an advisory addressing nursing homes (the “March 25 advisory”) and the circumstances in which patients were to be admitted or readmitted into nursing homes. That advisory, and what followed its issuance, has been much discussed. What has been lost in the discussion is that the March 25 advisory followed federal CDC guidance. Indeed, the CDC guidance on which the March 25 advisory is based is still in place. It has not been rescinded or superseded. Throughout last year, and into the Biden Administration, the CDC has not changed the guidance. At a minimum, this suggests the CDC continues to support this guidance and believe that it was — and still is — appropriate. Given CDC’s position, it follows that the March 25 advisory was also appropriate.
A similar view has been expressed by DoH Commissioner Dr. Howard Zucker. Dr. Zucker is a nationally credentialed health care professional. He has previously stated that the March 25 advisory was based on public health concerns. He also explained that in spring 2020, hospitals in New York were on the verge of being overwhelmed. There was a need for hospitals to have patients, who were no longer infectious and not in need of hospitalization, to be released from hospital care. With respect to patients who were returning, or being admitted to, nursing homes, the March 25 advisory did not operate in isolation from other laws and obligations. While nursing homes would not be permitted to deny admittance based solely on a diagnosis of COVID, nursing homes were to accept patients ONLY IF they had the proper precautions in place to provide appropriate care.
Just last week, Dr. Zucker reiterated that even with the advantage of hindsight, he would make the same decision again. Numerous health and hospital officials support this position. This is the very same view expressed by the leaders of five major New York hospital systems: New York-Presbyterian, Mount Sinai Health System, Northwell Health, NYU Langone Health and Montefiore. With the passage of time, it is important to remember the very real concerns of March and April 2020: If the hospitals became overwhelmed — which was a real possibility given the projections — tens of thousands more would have died.
Much of the current controversy became a nationalized and highly politicized story after Governor Cuomo addressed the 2020 Democratic National Convention in August. In his speech, he was highly critical of President Trump’s COVID management. The night of the Governor’s speech, President Trump tweeted 11 times attacking the Governor calling him a “nursing home killer.” Governor Gretchen Whitmer, of Michigan, also spoke at the Convention. She too was highly critical of President Trump’s COVID management. Prior to the Governor’s speech, major projects, such as the Second Avenue Subway, Gateway Tunnel, LaGuardia Airport and the repeal of the state and local tax (SALT) deduction, were under discussion and progress was being made. There had been an expectation that agreements between New York State and the Trump Administration would be forthcoming. Following the speech, all meaningful discussions were stopped.
Then, nine days after the Governor’s speech and in the middle of the Republican National Convention, the U.S. Department of Justice (“DoJ”) sent a letter seeking nursing home information from four states: New York, Michigan, New Jersey and Pennsylvania. It is important to remember that virtually every state was facing nursing home deaths. (New York is no. 34 in percentage of these deaths). Yet, it was only four states, each led by a Democratic governor, who received the request. The facts clearly leave the impression that this was not an ordinary inquiry and that the motivation was tainted by politics. This should not be surprising given the four-years of President Trump’s efforts to influence DoJ and serve his own interests through a DoJ with leadership at odds with an enlightened approach to the administration of justice. (The examples are plentiful, from the handling of the Michael Flynn case, to the use of DoJ in President Trump’s private litigation to the seeming disappearance of DoJ’s Pardon Office).
When the DOJ request was received Gov. Gretchen Whitmer stated:
The fact that this letter was sent during the middle of the Republican National Convention week to four Democratic governors should make it crystal clear that this is nothing more than election year politics by an administration that is more concerned with the president’s re-election campaign than protecting Michigan seniors.
The speculation of political motivation was also noted in publications. The Hill reported on September 3:
The Justice Department is currently considering an investigation into whether four Democratic-led states, including New York, violated the civil rights of nursing home residents by requiring nursing homes not turn away other residents for readmission after they had COVID-19. The Trump administration has come under fire as a result, with critics seeing the probe as politically motivated.
This highly politicized environment is important context for what transpired. Whether politicized or not, whether meritorious or specious, an inquiry from DoJ must be taken seriously. In ordinary times, any response must be thorough and accurate. And these were no ordinary times. The response was being prepared in the midst of a pandemic, and it seemed that infection rates might soon be on the rise. Plus, Trump’s supporters, including Fox News, the New York Post and his Republican acolytes, all claimed with heated frenzy that the March 25 directive was the cause of nursing home deaths. Even a casual observer would be entitled to conclude that the motivation for the DoJ request was political and had all the hallmarks of “a game of gotcha.” This was all the more deplorable given that the topic President Trump chose to exploit was the death toll COVID visited upon nursing homes. Therefore, it was perfectly prudent for the Governor’s Administration to proceed with all due care, including giving precedence to the DoJ request over information requests from others, including the legislature.
Several weeks ago, the Governor’s Secretary, Melissa DeRosa, attended a meeting in which she explained all of this to a group of legislators. She noted that in the wake of the DoJ request, given the political realities of dealing with the Trump Administration, we “froze.” Unfortunately, this statement was been taken out of context, especially by the New York Post. Reading the full transcript, it is absurd to conclude — as some critics have charged — that the comment was tantamount to an admission of obstruction of justice. Shortly after uttering the word “froze,” Ms. DeRosa made her meaning clear: “we provided all the information to the DoJ.” Ms. DeRosa then further explains that it was the state legislators’ request that had been paused — pending the response to the DoJ matter and in the maelstrom of the COVID crisis. Ms. DeRosa also noted that both legislative houses had been notified of this course of action. This was both appropriate and sensible.
Meanwhile, after the initial response to DoJ, the inquiry continued, albeit in a curious way. The state learned from the New York Post that a second letter request had been issued by DoJ. The state, in turn, contacted DoJ to confirm that a letter had indeed been issued. It was also learned that the letter was signed by Mr. Jeffrey Clark then of DOJ. As widely reported, following this episode, Mr. Clark played a role in efforts to subvert the presidential election, and has now left his DoJ position. In any event, that second letter request is still being satisfied on a rolling basis.
All of this brings us to today’s hearing.
There are a few key points to bear in mind. First, based on the views of credible health experts as well as the CDC’s own guidance, the March 25 advisory was sound and prudent. Second, there was no “cover up” — only a delay in producing data until the Administration could be confident that all the information was completely accurate. Additionally, as Ms. DeRosa has explained, precedent was appropriately given to the DoJ request while other requests were placed on pause. And, despite erroneous reports to the contrary, production to DoJ has been ongoing and timely – and totally truthful. Third, the administration never “froze” information to DoJ – and Ms. DeRosa never suggested otherwise. Finally, there is no doubt that this is a topic of public concern. How New York and DoH responded to the greatest healthcare crisis in memory is of vital importance. But much of this particular public debate has also been influenced, if not created, by the other crisis through which we suffered, that is, the Trump Presidency. When one views the facts – and strips away the highly charged politics — the reality of that is clear.