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Prosecutors Won’t Charge Cuomo in Nursing Home Scandal

You have to wonder whether allegedly groping a staffer really should have been the offense to drive Andrew Cuomo from public life.
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The Manhattan District Attorney’s office announced it won’t pursue criminal charges against former New York Governor Andrew Cuomo for his handling of coronavirus deaths in the state’s nursing homes. I’m not a lawyer and can’t say whether Cuomo’s conduct falls within the ambit of criminal law, but you don’t have to be an attorney to look at Cuomo’s actions and wonder whether allegedly groping a staffer really should have been the offense to drive him from public life.

On March 25, 2020, at the height of New York’s first coronavirus surge, Cuomo’s Department of Health (DOH) released its now-infamous guidance forcing nursing homes to accept patients with “a confirmed or suspected diagnosis of COVID-19.” The DOH said the policy was needed to “expand hospital capacity.”

In the early days of the pandemic, when New York City was burying corpses by the truckload on Hart Island, and Samaritan’s Purse was running a field hospital in Central Park, the administration’s policy could be seen as a reasonable, if ham-fisted, attempt to free up necessary hospital space. What followed the March 25 guidance—mass casualties among the state’s elderly and a cover-up of the fatality data—was inexcusable.

From the launch of the state’s nursing-home admissions policy on March 25 through its effective termination on May 10, more than 4,500 Covid-positive patients were admitted to New York nursing homes, according to an Associated Press investigation.

The virus spread like wildfire. Anecdotes preceded the data: Staff claimed bodies were “piling up” in long-term-care facilities. Morgues and mortuaries were overrun with corpses, forcing some nursing homes to rent refrigerated vehicles and stick them in their parking lots. Other desperate facilities put the deceased in vacant rooms, closed the doors, and cranked the air conditioning until local mortuaries had open space.

“They’re putting the bodies in [an] 18-wheeler,” one stunned Brooklynite observed as hospital staff shoveled human remains into the back of a truck with a forklift.

By May 22, almost 5,000 nursing-home residents had died.

The Cuomo administration released a report in June, produced in collaboration with an anonymous group of McKinsey consultants, that claimed its policy of sending infected patients back to long-term-care facilities did not meaningfully “contribute to nursing home infections and subsequent fatalities.”

The argument was absurd, but a later report from the New York Attorney General’s office and independent research by the nonprofit Empire Center dismantled the Cuomo report and its conclusion. Then-New York Attorney General Letitia James concluded that Covid-positive “admissions may have contributed to increased risk of nursing home resident infection, and subsequent fatalities.” The Empire Center, which obtained the state’s nursing-home-fatality data through a freedom of information law request, found that “admitting any number of new COVID-positive patients [into a nursing home] was associated with an average of 4.2 additional deaths per facility.”

Cuomo had a book to sell and an Emmy award to win. When the nursing-home issue refused to go away, he took a new tack, touting New York’s apparently strong performance on nursing homes compared to other states.

“Look at the basic facts where New York is versus other states,” Cuomo said in an August press briefing. “You look at where New York is as a percentage of nursing home deaths, it’s all the way at the bottom of the list.”

When reporters pressed the issue, Cuomo told them to hound Republican governors instead.

“Go talk to 34 other states first. Go talk to the Republican states now—Florida, Texas, Arizona—ask them what is happening in nursing homes,” Cuomo said. “It’s all politics.”

In fact, it was Cuomo’s political ambitions that led his administration to fudge the numbers and obscure thousands of deaths in New York nursing homes. Unlike every other state that had major outbreaks of Covid-19, per AP, New York would only “count residents who died on nursing home property and not those who were transported to hospitals and died there” in its state nursing-home-death totals.

In January 2021, Attorney General Letitia James reached out to individual nursing homes and asked them to self-report their mortality data. She found that the state Department of Health had undercounted coronavirus deaths in nursing homes and other long-term-care facilities by roughly 50 percent.

Within weeks of the attorney general’s report, the Department of Health quietly updated the nursing-home-death total from 8,740 to 12,743. By February 9, its reported total surged to 15,049.

The federal Department of Justice caught wind of the impropriety and launched an investigation of its own. Even Democratic lawmakers in New York began demanding answers.

Caught in a whirlwind of state and federal pressure, Secretary to the Governor Melissa DeRosa revealed in a February 2021 conference call why New York had covered up the deaths of thousands of senior citizens.

“[W]e were in a position where we weren’t sure if [the data] we were going to give to the Department of Justice, or what we give to you guys, what we start saying,” she said, “was going to be used against us.”

After her remarks were leaked to the New York Post, DeRosa apologized for putting Democrats in an unfavorable “political position with the Republicans.”

Cuomo himself offered a half-hearted apology, invoking the specter of “conspiracy theories” and “disinformation.”

“The void we created by not providing information was filled with skepticism and cynicism and conspiracy theories which fueled the confusion,” he said. “The void we created disinformation and that caused more anxiety for loved ones.”

Compared to refrigerated trucks full of deceased nursing home residents, “confusion” was the least of it.

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