The Daily Signal - Why Someone Hid Accurate Death Count for New York Nursing Homes

Episode Date: March 23, 2021

New York Gov. Andrew Cuomo’s handling of nursing homes during the COVID-19 pandemic and his administration's alleged efforts to hide the accurate number of related deaths beg the question: Is the cover-up worse than the crime? The Empire Center for Public Policy, a New York-based research organization, filed a request last summer under the Freedom of Information Act seeking the accurate number of deaths in elder-care facilities from the state’s Department of Health. Tim Hoefer, president and CEO of Empire Center, joins "The Daily Signal Podcast" to explain why it took so long for the truth about New York’s nursing home deaths to come to light, and what may be next for Cuomo.  We also cover these stories:  Sens. John Cornyn, R-Texas, and Kyrsten Sinema, D-Ariz., ask President Biden to use his “full authorities” to respond to the crisis at the southern border.  The White House says about 1 in 3 in Americans are getting the coronavirus vaccine. The president and vice president of The Heritage Foundation, Kay C. James and Kim Holmes, announce their resignations from the Washington-based think tank.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Tuesday, March 23rd. I'm Rachel Dull Judas. And I'm Virginia Allen. New York Governor Andrew Cuomo allegedly covered up the accurate number of COVID-19 nursing home deaths in his state. The Empire Center in New York filed a freedom of information request of the New York Department of Health in August in order to get the accurate number of nursing home deaths. When they did not receive the information they were requesting, the Empire Center sued the Department of Health. Tim Hofer, president and CEO of the Empire Center, joins the show today to explain what could happen next to Governor Cuomo and why the truth was hidden for so long. Don't forget, if you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe.

Now onto our top news. Republican Senator John Cornyn of Texas and Democrat Senator Kristen Sinema of Arizona are asking President Joe Biden to use his full authorities to respond to the crisis at the southern border. In a joint letter, Cornyn and Sinema wrote, we write to urge you to use your full authorities to effectively respond to and successfully manage the ongoing crisis at our southwest border. It is critical that our nation take aggressive steps to secure our border, protect our communities, and ensure migrants are treated fairly and humanely. They added that they will work with Congress to develop bipartisan and common sense responses to the surge of migrants at the border.

Senator Ted Cruz, Republican of Texas, sent a letter to President Joe Biden on Monday, demanding that press be allowed access to immigration intake facilities on the southern border. Cruz is traveling to the Rio Grande Valley on Friday with a delegation of GOP leaders, and Cruz would like to take press with him to report on what is happening in the facilities at the border, but the Biden administration is currently not allowing press into the immigration holding facilities, citing concerns over COVID-19. In the letter to Biden, Cruz wrote, denying the press the ability to observe, film, and report on the conditions at the border is not openness or transparency. It is hiding the truth from the American people. The press and the American people deserve more than

denials and excuses from a podium. of the press were not allowed to travel to the border last week with a bipartisan delegation, but senators reported that the facilities holding children were overcrowded. The White House says that about one in three Americans are getting the coronavirus vaccine. The senior advisor of the Biden administration's coronavirus response team, Andy Slavitt, said per Fox News that about 81 million Americans, or almost one in three, have gotten at least the first dose of the COVID-19 vaccine, with a total of a problem. approximately 44 million currently fully vaccinated.

On Monday, the U.S. Supreme Court agreed to hear the case to reinstate the death penalty for Boston Marathon bomber Johar Sarniev. Last year, the U.S. Court of Appeals for the First Circuit ruled that Serniev should not receive the death penalty because the judge, who resided over the hearing, had failed to find a fair jury. After there was so much news coverage of the Boston bombing, which left three individuals dead. The justices are expected to hear arguments for the case this fall. The justices could rule to overturn the appeals court decision and reinstate the death penalty, but if they do not, Serniev will serve several life sentences in prison. The president and vice president of the

Heritage Foundation, K. Coles, James, and Kim Holmes announced Monday that they will be resigning from their leadership positions. When we came on board as the executive leadership team three years ago, We set several goals and told Heritage's board of trustees that we would serve for three to five years to see them through, James said in a statement. We accomplished everything we set out to do. Now it's time to let someone else take the reins. James and Holmes took the helm as president and vice president of the Heritage Foundation on December 19, 2017. Now stay tuned for my conversation with Tim Hofer, president and CEO of the Empire Center, as we discuss New York Governor Andrew Cuomo's handling. of the COVID-19 cases in nursing homes.

Americans use firearms to defend themselves between 500,000 and 2 million times every year. But God forbid that my mother has ever faced with a scenario where she has to stop a threat to her life. But if she is, I hope politicians protected by professional armed security didn't strip her of the right to use the firearms she can handle most competently. To watch the rest of heritage expert Amy Swearer's testimony on assault weapons before the House Judicial, Committee, head to the Heritage Foundation YouTube channel. There you'll find talks, events, and documentaries, backed with the reputation of the nation's most broadly supported Public Policy Research Institute.

Start watching now at heritage.org slash YouTube. And don't forget to subscribe and share. I am so pleased to be joined by Tim Hofer, President and CEO of the Empire Center in New York. Mr. Hofer, thank you so much for being here. Oh, thanks for having me. Today we are talking about Governor Andrew Cuomo's attempt to cover up the accurate number of COVID-19 nursing home death in the state of New York. So let's begin by going back to August 3, 2020. This is the day when the Empire Center filed a Freedom of Information Act request, also known as a FOIA with the New York Department of Health.

What information were you all requesting from the Department of Health? What we were looking to get was the full count of nursing home residents who had died as a result of COVID. So you filed that request, and what response do you receive from New York's Department of Health? Well, we filed the request, and the way that New York's FOIA law works is that within five days, you have to acknowledge that you've received the request, and then you have to tell them the request door. when you intend to answer the request. And so they did respond and say that they had received it and they would get back to us in a certain amount of time. And then as we approached that certain amount of time, we were told again that they would get back to us within a certain amount of time. That ultimately happened three different points.

But before that, before we let it get that far, we filed what we referred to as a constructive appeal of denial. because at some point they have constructively denied the request by not responding to it. How long does it usually take for a FOIA request to be fulfilled? Well, that's a loaded question. The Empire Center does a lot of foiling in New York. We run a transparency website called C-3NY where we've been posting government spending data for over 10 years. So we have literally filed thousands and thousands of foil. Sometimes they're very, very quick and sometimes they're not.

And so the Department of Health, which does provide a lot of data, even proactively provides data, in this case, just took far, far too long. And again, that provision of foil that we're talking about, that the constructive denial is because you can't receive a fore. as a government agency, you can't receive a foil, give somebody a date, and then continue to push that date. That's a clear violation of the law. So then on September 18th, you all actually filed a lawsuit against the Department of Health in New York, correct, in order to get that information that you were seeking? Yeah, so that's the outcome of we had appealed to the constructive denial, and when that appeal was denied by the Department of Health, the next step in the process is to file the lawsuit. So that was filed in the middle of September. The entire thing was fully briefed by the

end of October. And then, as you know, it sat with the judge from that point until the ruling eventually came down early February. Okay. So obviously that ruling came out in February, but in January, New York Attorney General Latita James, she had kind of launched this whole investigation to find out what is really going on in New York with the nursing homes, with the accurate number of deaths. And then in January, she came out and released the fact that, you know, it looked like they were about twice as many nursing home deaths due to COVID-19 in New York then had actually been reported. What was your response when you learned this information? Well, that I, so you hit the nail on the head there that the Attorney General's report found that it looked like there was the number.

It was actually 50% more is what they had suggested, which was the same number that we had been using for months to say we think they're under reporting by a significant margin here. So when the Attorney General's report came out and we saw that even the Attorney General couldn't pry these data out of the Department of Health's hands, we followed. it up with a letter to the judge that had been assigned in the case and said, come on, like, what is it going to take? Even the Attorney General can't get access to these data that the Department of Health is collecting on behalf of taxpayers. You need to rule. You need to rule right now. And then within a matter of days, the ruling came out, ruled totally in the Empire Center's favor. In fact, had found that we had prevailed so significantly that we were awarded cost and fees from the Department of Health.

That's significant in so much as it means that we prevailed in a way that was unimpeachable, right? That the case was so strong in our favor that the Department of Health had acted so poorly in this case that they were required to pay us for our time and for our costs leading up to a lawsuit all the way through it. Wow. Had you ever seen, you know, this kind of behavior before from, you know, New York's government being that resistant to release information? Oh, boy. Yes. So, you know, again, we've done, we've done thousands and thousands of these foils. We've got government entities that behave really well. We've got some that

habitually behave poorly. The entire effort on our end is thinking about making sure that New York taxpayers have access to their data. So going after these what sometimes appear like boring, procedural plays to make sure that government is responding properly to FOIA requests, that they aren't withholding data, that they aren't holding things back. It's something that we do a lot of. We've done it with, you know, the MTA is an example of a government entity. We're actually fighting with them right now in terms of responding to FOIA requests and even acknowledging them, let alone getting the data from them, and then using delay tactics to prevent

themselves from having to actually release the data. So this was just one more in a series. We see it as part of our role to be, you know, what you could call it a watchdog. You could also call it the advocate on behalf of taxpayers to make sure that government doesn't create this barrier, that they don't create this problem between a citizen and their right to have access to data. Yeah. Well, as this information has come out about the situation in New York and Governor Cuomo's really apparent attempt to kind of cover up those right numbers, a lot of Americans are obviously asking the question, okay, why was there a cover-up? And, you know, why were there this many nursing home deaths?

What led to this? So if we go back to March 25th, 2020, Governor Cuomo issued a directive to nursing homes to take patients back into those nursing homes and care facilities, regardless of their COVID status. We've heard a lot from Janice Dean, the meteorologist at Fox News about this topic. She's been incredibly vocal about this directive that Cuomo gave and the fact that it, you know, likely contributed to many of the elderly deaths in New York. So, you know, did Cuomo, he did ultimately rescind that directive in May. But what role do you think that order ultimately played in the death toll of New York's elder?

Yeah, so this is, you know, largely this is the case of is the cover up worse than the crime. The executive order came down. It was, you know, you have to put yourself in the mind frame of what it was like here in the U.S., specifically here in New York, at the end of March. We didn't know very much. There was a lot going on. People were getting sick. People were dying. And so this executive order came down. Obviously, in hindsight, we can see that it was a mistake. The reason that the Empire Center and others began asking for the outcome of this executive order was because it did appear that there was a disproportionate share of nursing home residents who were dying. Janice is a great spokesperson for that in the worst possible way because she lost not one but two parents. And, you know, the story of Janice's in-laws is heartbreaking.

And it's part of the reason that from an academic perspective, we wanted to get a whole of these data, which was not to play gotcha, but rather to make sure that if there was a resurgence or in the next pandemic, that we learned from what happened in this one. We can't do that if we don't have access to the data. So it didn't take long after questions started to be asked. for the Department of Health to proactively, I suppose, do an analysis on the data and put out a report, which they eventually did in June or July.

That found, in their words, you know, no statistical significance between the executive order and the number of deaths and nursing homes. But it was when they put that report out and the data that they alluded to in it, that we began to see inconsistencies. there and right we start asking the question well what's happening here and uh in a subsequent legislative hearing uh Howard Zucker who is the who is the director in the Department of Health

was asked questions about this from from legislative leaders and didn't have a good answer and then so it then it became really clear uh that there was something there to hide and that was the genesis for what also became our FOIL request the lawsuit and then and then the data that finally came out in February. Hmm. Well, and you mentioned February. That was a big month for a lot of this information on February 10th, during a phone call with Democrats, Secretary to the governor, Melissa DeRosa, Cuomo's top aide, said that her office

were that if the accurate numbers of nursing home deaths were released, they had concerns that that information would actually be used against them. Were you surprised by this statement that she, admitted that there had been a strategic effort to keep the accurate number of deaths hidden from the public? So there are several investigations happening currently into the actions of Governor Cuomo and his administration, and I think we'll see that all play out in due time. From our perspective, what I didn't find is surprising is that there is a political culture

in Albany and in New York state government. that, you know, whether it's the governor or whether it's the administration or whether it's some of these entities that we've been talking about, the culture is sort of to withdraw and protect. And that's obviously in our view antithetical to what government should be doing, which is acting on behalf of the people it represents. So that was not surprising. You know, it's in some ways it's rewarding for us again in the worst possible way. for the rest of the country to begin to see that it's not all roses here in New York. Governor Cuomo did some things during the beginning of the pandemic and throughout in terms of the way that he handled himself in questions that brought people a lot of peace in the scary time,

and I understand that. But there were also a lot of things that didn't happen well. And, you know, you have to look back further than 2020 to realize that while the governor may have had 100 plus straight consecutive days of answering questions from the press, there were literally hundreds of days before then when he wasn't available to take questions to the press or from the press and wouldn't answer questions about actions they had taken. So this is more a continuation of a decade of habit. And really it was March of 2020 through January 21.

That was the exception to that typical behavior. What are your thoughts on the way that the media has covered this situation? the cover-up and as things have continued to unfold about about that cover-up of the accurate number of nursing home deaths? Well, I think there's a lot of interest now. You know, there's probably two big things at play right now as far as the Kremlin administration is concerned. One is the way that they handled the nursing home data and the subsequent cover-up. The other are the allegations of sexual harassment. And so by its own virtue, sexual harassment and sort of the behavior of the administration has taken front and center in terms of how this is being portrayed and what you're seeing in

national headlines now and that's obviously very important one of the things that we're paying close attention to is to make sure that this other story that this actual behavior and how we look at and release data and what what is available on the actions around of the nursing home deaths that that doesn't get lost in that because that is also a very important piece of it Yeah, does that concern you at all, that it does seem like the media is maybe paying a little bit more attention to the situation now that these sexual harassment and even sexual assault claims have come out? And there's an increased pressure from multiple sources on Cuomo to maybe even step down. and that really began more so when these sexual harassment claims came out and not until then.

And I'm just wondering if that concerns you at all, that there maybe wasn't pressure for that beginning with just the facts of the handling and the cover-up of the nursing home situation. Again, I think there's a lot of things that play here, and they build off of one another. So this all started because the administration was forced to hand over these data, and it ultimately showed that they had been sort of cherry picking what they were going to make available. And that is almost, if you look at the way that this whole thing unfolded, maybe that's the catalyst for what followed, because what was next was the allegations of bullying and just sort of bad actions from. the administration and that came from the assembly member Kim who said the governor called and you know and then and then we heard more of those stories and then the allegations of sexual abuse followed and there was one and then there was two and now there are I don't know seven or more I'm not

sure so this sort of piling on effect actually is an indicator of what I was saying earlier in that the previous modicum of operation here in New York was just sort of withdrawn, don't answer questions and stories go away because you can't force a story if you can't get an answer out of it. And so as you sort of make that chink in the armor on this nursing home data, maybe it emboldened others, maybe it made it more likely that some of these things would be covered. Maybe anybody who was an accuser after that felt like they had more of a pulpit. to stand up and say this is it. And ultimately, from our perspective,

this all leads back to changing that political culture here, making sure that we create an environment where people feel safe and can get answers to their questions or where they can make allegations if they've been holding back and they wouldn't be taken seriously. Whatever the case may be is, do we have an environment in New York where you can come in and you can ask serious questions, where you can be taken seriously,

where you can be heard, If that's what this all leads to, then I think it's a victory for everybody involved. From the government to watchdogs to taxpayers, everybody wins in that scenario. So in order to achieve that atmosphere where everyone can be heard and information is shared honestly, what needs to happen next? What needs to change here? Well, we certainly can't stop asking questions and keeping the pressure on. And so that is obviously a role that the Empire Center plays on the policy side. Obviously, there are several investigations happening from federal to state to independent levels on the actions of the governor and his administration in all of those issues.

So we'll continue to see that. And then what comes out of it, right? So can you can we continue to sort of push this new narrative where openness really is sort of the best disinfectant and this scenario. And then what are the legislative remedies for that? Some of the things we're thinking about are, you know, how do you make changes to New York's freedom of information law so that, you know, maybe government can't withhold data as easily as they do now. And I hope, sincerely, that there are people on both sides of the aisle that are willing to sort of address

that. New York has a long and story history with public ethics when it comes to their elected officials. This is yet just another example of that. But it goes beyond sort of these sexual stories or sexual harassment stories, it goes right into, do these actors always act in the best interest. And so there's a committee on public ethics in New York that has been a joke for as long as it's existed. Its predecessor was the same. So maybe right now is the chance for us to go in and sort of fine-tune that process and find

something that really works and begin to build back up the trust in government, which is ultimately what we need for the government to be successful, but for New York to be successful, New York to sort of turn this around and, you know, stop being thought of as, you know, the embarrassment of what's happening in terms of the way that state government works. Yeah. Many political leaders, including New York Mayor Bill de Blasio, have said that they think Cuomo should consider stepping down. Do you believe Cuomo's alleged actions to intentionally hide the accurate number of nursing home deaths is an offense that would require him to step down or maybe even be impeached? Well, again, I think we're going to see that process play out. It

probably doesn't matter too much what I think. I think ultimately what matters is what are the people of New York states. So that'll be decided now. It'll be decided when the investigations come down or it'll be decided next year when there's another election for governor in New York are interested in making sure we know exactly what goes in, that people have access to exactly the information that's important and relevant when they begin to make those decisions. Yeah. Mr. Hofer, thank you so much for your time and thank you for all the work that you all are doing at the Empire Center.

Thank you. Appreciate it. And tell us just briefly, how can our listeners follow the work of the Empire Center? Sure. Our website is EmpireCenter.org. the transparency website is see-through-Ny.net. And we'd love to have anybody and everybody sign up and get our email. Great. Thank you so much for your time.

All right. Take care. And that'll do it for today's episode. Thanks for listening to the Daily Signal podcast. You can find the Daily Signal podcast on Google Play, Apple Podcasts, Spotify, and IHeartRadio. Please be sure to leave us a review in a five-star rating on Apple Podcasts and encourage others to subscribe. Thanks again for listening and we'll be back with you all tomorrow. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Kate Trinko and Rachel Del Judas, sound design by Lauren Evans, Mark Geinney, and John Pop.

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