The alleged misreporting by the Cuomo government of deaths in nursing homes in New York is serious and may merit federal criminal prosecution.
On March 25, 2020, Governor Andrew Cuomo issued an executive order requiring nursing homes in New York to admit hospital patients who had tested positive for Covid-19. The injunction also prohibited nursing homes from requiring hospital residents considered “medically stable” to be tested before admission or readmission. By the end of the summer, there were more than 32,000 Covid deaths in New York, the highest number in the nation and more than double that of any other state. If New York had been its own, it would have been in the top 10 Covid deaths. The number of deaths translated to the country’s second highest death rate: more than three times the national average.
What caught the attention of the Justice Department was Governor Cuomo’s claim that the death toll in nursing homes in New York was lower than in many other states and that his March 25 order did not contribute to the extremely high number of New Yorkers dying to Covid. Given the virus’s disproportionate effect on the elderly, the sick and the frail, this seemed unlikely. On August 26, the Civil Rights Division of Justice, 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 the publicly run nursing homes in New York, which account for less than 5% of nursing homes in the state.
In September, New York produced data showing that it had underreported Covid deaths in government-run nursing homes by one-third. The undercount appeared to be due to several factors. First, when a nursing home resident who contracted Covid died after being transported to a hospital for treatment, New York did not count it as a “death in a nursing home.” Second, New York did not include deaths that occurred before the Centers for Medicare and Medicaid Services began demanding Covid reporting from nursing homes in mid-May. CMS made reporting of past Covid deaths optional, and New York apparently chose to keep the information to itself.
But New York officials knew that the data they reported to CMS didn’t go back until mid-May. The Cuomo government misled the public when it relied on that data to claim in late September that the total number of deaths in nursing homes in the state was low.