The Daily - When Covid Hit Nursing Homes, Part 2: ‘They’re Not Giving Us an Ending’

Episode Date: February 24, 2021

When the pandemic was bearing down on New York last March, Gov. Andrew Cuomo’s administration issued a directive that allowed Covid-19 patients to be discharged into nursing homes in a bid to free up hospital beds for the sickest patients. It was a decision that had the potential to cost thousands of lives.Today, in the second part of our look at New York nursing homes, we explore the effects of the decisions made by the Cuomo administration and the crisis now facing his leadership. Guest: Amy Julia Harris, an investigative reporter on The New York Times’s Metro desk. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: Trying to quell a growing outcry over the state’s handling of nursing homes during the pandemic, Gov. Andrew Cuomo launched into a 90-minute defense of his actions while hitting back at critics.The scrutiny of Covid-19 deaths in New York nursing homes has also put Mr. Cuomo’s aggressive behavior in the spotlight.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Yesterday, we told the story of Lori Sullivan. Last February, her mother entered a nursing home on Long Island with an injured leg. And the nursing home said, your mother's going to be safe to hear and then she's going to be at home. With people coming in and out of the house. to be safe to hear, then she's going to be at home with people coming in and out of the house. So they were saying because it was a lockdown facility, that would be safer than if she was at home where you're coming and going?

Right. So we thought, OK, so they'll be on lockdown. Everything will be OK. Within weeks, she had died from COVID-19. Her death and the death of thousands of nursing home residents across the state, has now triggered a political firestorm and a federal investigation. Today, in part two of her investigation, Amy Julia Harris examines how the decisions made by New York's governor, Andrew Cuomo, may have contributed to the crisis. It's Wednesday, February 24th.

Okay, so Amy Julia, yesterday you told us that two weeks before Lori's mother died of COVID-19, Governor Andrew Cuomo pretty much ensured that people like Lori couldn't hold nursing homes responsible for the deaths of their loved ones. What is the story of how that happened? How holding nursing homes responsible now appears all but impossible? Michael, you sort of have to go back to the beginning of March when the pandemic and COVID is really bearing down on New York City. Good evening, everyone. Tonight,

we're becoming crushed under a tidal wave of unfathomable numbers. Queens in New York is the worst infected district in what is now the world's worst infected city. And the doctors and nurses don't know what's hit them. It's the epicenter of the crisis. People come in, they get intubated, they die, the cycle repeats. It is chaotic. People are dying. New York City paramedics are no longer taking patients to hospitals unless they have a pulse to ease the strain on overcrowded yards.

What is becoming quite clear is New York is reaching a tipping point and far sooner than anyone here expected. And the Cuomo administration said that they were scrambling to free up hospital beds. We have 3,000 ICU beds. We may need between 18,000 to 37,000. That's my greatest concern. And they were looking at a variety of different facilities. I'm on my way down to the Javits Center today. I want to make sure those...

There was the Javits Center. There was a Navy ship. Right away. Then we're going to use Stony Brook. We're going to use Westchester. We're going to use Old Westbury. They were looking at surgery centers. And nursing homes was also one of the places they were looking at, which looking back at it now, that kind of seems crazy.

But at the time, the Cuomo administration said that they were looking at any type of health care facility to just ensure that the sickest patients could receive the best care in hospitals that were predicted to be totally overwhelmed. Right. I can remember vividly those conversations from the governor about hospital capacity. That was the number one priority. And I feel like it's at this point that many people outside New York are discovering Governor Andrew Cuomo for the first time. But for those of us who have covered him and New York State for years, it felt like this was sort of the moment he was born for, right? He had long run the state as a kind of unilateral force. And I remember talking to him at the time, actually for an episode of The Daily,

and he compared himself to a wartime president, right? A general with enemies. We are seeing the enemy on the horizon, and they are approaching very quickly. And in this case, that enemy was the coronavirus, which was suddenly at the gate. And it really did feel like a lot of people were responding to this style of leadership from him. I remember personally at the time, I was glued to his daily press conferences. Good afternoon. Bigger group than usual.

More than Maria. And I think a lot of people thought that his calm demeanor. New York, we make ourselves. His sense that we're all in this together. World War I, World War II, the Great Depression. Some of the most tragic situations actually forged the character and the resolve of this nation. New York State, the same thing.

And I'm going to be very fact-based. I know, but tell me the facts first. Then we'll do your opinion. That resonated with a lot of people and I think provided a tremendous amount of calm in an otherwise chaotic and terrifying time. This is no time and no place for division. We have our hands full as it is. Let's just stay together and let's work it through. So he really emerged as a leader at the time and was granted emergency powers to make a lot of unilateral decisions for the entire state of New

York. And so how does he end up using those powers when it comes to the issue of overwhelmed hospitals and nursing homes? You know, at the beginning, his health department in March issued this directive that said that COVID patients from hospitals had to be discharged to nursing homes and nursing homes could not discriminate against COVID patients. Everyone knew that if COVID got into these populations where people are old and frail, it would be a disaster. So a lot of nursing home operators really questioned this directive at the time and said, this might potentially overwhelm the nursing home system. Why are you sending these positive patients into an institution in which there's a tremendous amount of danger? But nevertheless, the decision was made to mandate

this. Right. So at this particular time, nursing homes are being told you have to accept COVID patients. Now, Cuomo later clarified in a press conference that nursing homes should not accept these patients if they couldn't safely care for them. But at the time, nursing homes viewed this as a mandate. And they're feeling really overwhelmed. Staff members are getting sick in nursing homes and the industry is really feeling besieged. Also at this time, there is a sort of behind the scenes lobbying push by influential lobbying groups to the Cuomo administration to protect healthcare facilities from lawsuits during the pandemic. They want this to extend to hospitals specifically.

Then the nursing home lobbying industry says, you know, we want those protections too. Nursing homes have been so hard hit. We don't have PPE. We don't have the staffing. We want those protections as well. We don't have the staffing. We want those protections as well. So in late March, aides to Governor Cuomo quietly insert this provision in the massive budget bill that protects both hospitals, health care facilities and nursing homes from lawsuits over their handling of COVID cases.

And on April 2nd, the legislature approves this massive budget bill. And most lawmakers don't notice that on page 347 in a seemingly unrelated piece of legislation, there is these incredibly powerful protections for nursing homes that shield them from lawsuits. You said that most lawmakers don't notice, but somebody does eventually notice this provision? There were a few advocates for nursing home residents who learned about these provisions and called reporters and told them about it. That was how I heard about this. And then I started asking lawmakers who I thought would be aware of this about what their opinions were, people like Richard Gottfried, the chairman of the assembly's health committee. But what I learned is that many of them said they were blindsided by these immunity provisions. Huh. So you were telling them about what they had just voted to approve? Yeah, I was the one who was explaining to them what was in the budget bill. And they were horrified because this was at the time that

nursing home deaths were really starting to kind of trickle out. And we were just realizing how awful things were within nursing homes. And then lawmakers realized that as we were hearing these reports of horrible negligence and deaths, that they had actually approved these provisions to shield nursing homes from lawsuits. You know, when I called Ron Kim, a Democratic assemblyman in Queens, which was an area that was particularly ravaged with COVID cases, he said that it was borderline criminal to include these legal provisions at a time where homes were not being transparent about what was going on inside and at a time where family members were just desperate for even basic

information about the care that their loved ones were getting. What would the Cuomo administration, which put this provision in the budget, say in defense of these protections? And for that matter, what would these lobbying groups say? Because it feels like the most obvious explanation would be that the state has asked a lot of hospitals and nursing homes during this public health crisis, and they are just asking for something in return. But is there more to it than that? The Cuomo administration basically likened these immunity protections to a good Samaritan law. And what that says is basically, if you are in an emergency, if there's an accident and you're trying to help someone in

an emergency, you shouldn't be held responsible if something goes wrong as you're trying to provide help. So what they were saying is that the scope of the coronavirus pandemic was so broad that this was an emergency for everyone. And that the way that you protect healthcare workers is to shield them from lawsuits. So the Cuomo administration's response is, you know, this was not anything nefarious to protect a bad industry or protect bad facilities. This was just kind of a common sense thing to do to ensure that the healthcare system is running smoothly. Right. And from your reporting, Amy Julia, what would you say to that defense? How does it strike you? So these immunity protections are treating all nursing homes as equal, of basically saying that this was an unprecedented crisis that was affecting all homes equally.

what we know now is that that's not true homes that were under investing in staffing homes that had been cited for not having enough staff members or not having infection control policies were hit with covid much harder and the death toll was a lot more staggering. The people that I've talked to have said that these immunity protections are often protecting bad homes that were under-investing in these things, and it makes it very difficult for people to hold the homes accountable for poor care that could have saved their loved ones' lives. We'll be right back. So Amy Julia, it has been nearly a year since all of this played out. New York as the epicenter of the pandemic, the situation inside the nursing homes,

the protections that nursing homes were granted in the budget, and the outrage among lawmakers. So, why are we talking about this now? For a while, it seemed like the Cuomo administration was sort of weathering the scandal around these nursing home policies. And over the summer, they released a report that was tackling the nursing home issue in which they said that the mandate for nursing homes to accept COVID positive patients was not the cause of all of the death and carnage in nursing homes. It was really asymptomatic workers who were sick. Which means you could have walked into a nursing home, been totally conscientious, had no signs of anything, and walked it into a nursing home. But, you know, the Cuomo administration was continuing to get hammered on this,

often from Republican lawmakers. And Cuomo's response to all of that criticism was, this is being weaponized by Republicans. And that was sort of the posturing was that New York didn't do anything wrong. This is a political attack. It has no basis in fact. It was pure politics and it was ugly politics. And now the report has the facts and the facts tell the exact opposite story. But the winds really shifted for the Cuomo administration this year in January, where New York's Attorney General Letitia James came out with a scathing bombshell report that was really blasting the Cuomo administration for its handling of nursing home deaths.

And what the report found was that nursing home deaths were severely undercounted in New York. They were only counting residents who had died in nursing homes and not all of the nursing home residents who were sent to hospitals and then died. So the Cuomo administration was undercounting nursing home deaths by as much as 50 percent. Wow. Yeah, significant amount. And the Attorney General is a Democrat, not a Republican. Correct. So I think that carried a lot of political weight at the time when it came out.

The AG report also tackled the very controversial March 25th mandate from the health department that nursing homes accept COVID positive patients and revealed that more than 6,000 patients from hospitals positive with COVID were sent to nursing homes. And that policy may have contributed to the high death count in New York. So the AG report was really striking because you have this incredibly powerful Democrat saying that the Cuomo administration had made some questionable decisions and that the death toll in nursing homes was much higher than we initially thought.

And what does Governor Cuomo say about that once this report becomes public? He largely did not back down. If you look at New York State, we have a lower percentage of deaths in nursing homes than other states. A third of all deaths in this nation are from nursing homes. New York State, we're only about 28% only.

And Cuomo essentially said it didn't matter where people died. But who cares? 33, 28, died in a hospital, died in a nursing home. They died. That there were going to be deaths in nursing homes, so the exact location didn't really matter. Look, whether a person died in a hospital or died in a nursing home,

it's the people died. But this was also happening at a time where new data was being released by the State Department of Health that showed the true toll of nursing home deaths. And they said that there had been more than 15,000 residents of nursing homes and long-term care facilities who had died, which was dramatically more than had been reported. That was a crisis for the Cuomo administration. And as this is all happening, lawmakers are really calling out the administration for their handling of this and the lack of transparency. There is this New York Post report that revealed that one of Governor Cuomo's top aides admitted

to lawmakers that they had not been transparent and had been withholding the true nursing home death count because they were worried that it would be politicized by the Trump Department of Justice, which was looking into New York's handling of coronavirus cases in nursing homes. Right. The aide herself says this. Yes. And that puts the Cuomo administration even more on the defensive. Happy day 352. Happy President's Day again. And last week in a news conference, Cuomo, who rarely backs down from any policy decision, issued kind of a rare, almost apology. kind of a rare, almost apology. Apologize? Look, I have said repeatedly,

we made a mistake in creating the void. We made a mistake in creating the void. When we didn't provide information, it allowed press, people, cynics, politicians to fill the void. He never officially apologized, but he came the closest that he had to saying that it was a mistake to withhold some of this data. Total death counts were always accurate. Nothing was hidden from anyone. Nothing was hidden from anyone. But we did create the void, and that created pain. And I feel very badly about that. Okay, thank you all very much. And I imagine for someone like Governor Cuomo,

any admission like this was pretty hard to get to. This is not a man known for acknowledging mistakes of any kind. So I think it tells you something about the situation that he's in. This has morphed into a full political firestorm for Andrew Cuomo. Lawmakers who before had often been scared to speak up against the governor are coming out. Welcome to the show, sir. Very nice to have you here today. And really holding him accountable for his way of responding to the pandemic. Yeah, so it was last Thursday night.

I was about to bathe my three kids when I received a call from the governor. Ron Kim, who had been the lawmaker who was outraged over the immunity provisions, came out and said that... He spent 10 minutes threatening my career and ordering me to issue a statement that would be used to cover for the state secretary. Governor Cuomo had called him, yelled at him for 10 minutes and said, I will destroy you after Ron Kim had really been vocal in holding the Cuomo administration accountable for the carnage in nursing homes. We could have done our jobs. We could have legislated. And he took that away from us. We could have had a different outcome if we had all the information in real time. There's also a federal inquiry into the Cuomo administration's handling of this nursing home issue. The FBI and the U.S. Attorney's Office are investigating this.

And lawmakers are moving to strip Cuomo of the emergency powers they granted him at the beginning of the pandemic, partially as a result of this fallout from the nursing home scandal. It's striking that the very thing that causes Cuomo, if we think back to the beginning of the pandemic, to rise to national fame, this unilateral approach to decision-making, and his message that kind of he and he alone was in charge of New York's response response is ultimately what seems to be now calling his entire handling of this into so much question and given what you just described may end up costing him real power. Yeah, I remember it was pretty striking at the beginning of the pandemic.

He said, if there's blame, blame me. pretty striking at the beginning of the pandemic. He said, if there's blame, blame me. And now as we're emerging almost a year later, I think a lot of blame is falling on his shoulders. And I think one of the things that did him no favor was any time that his administration was under fire for the way that they had responded to either the directive to accept COVID patients or undercounting deaths. He always refused to acknowledge fault in his administration's handling of the crisis at an admittedly very difficult time. I think that strident defense of, I did nothing wrong, really rubbed a lot of people the wrong way, in particular, family members of nursing home residents. And I talked to Lori about this, who said that, you know, at the beginning, she was a Cuomo fan.

She was glued to his press conferences and found them really reassuring. and found them really reassuring. But as time went on and she saw what happened in nursing homes and just heard him dismiss her pain of not having answers, she said she really felt betrayed. It was the insistence that the response was perfect, that there were very few mistakes that really led her and so many other people to be so angry with the Cuomo administration's response. Amy Julia, thank you very much. We appreciate it.

Thanks for having me. Lori, I'm wondering how you're reflecting on all of this, because it's been nearly a year since you lost your mom. She was one of the first people who died in the first wave that hit New York so hard. And now there are just hundreds of thousands of Americans all over who have died of COVID. How are you thinking about things now? I'm not thinking any differently than I was when I was a first-time. I just don't understand it. There's no answer. How can you feel any different when you're still in the same spot? We don't have any more clarity to make us feel any different. There's still not a night that you don't go to bed and think about how they died or whatever.

Because we don't have the answers. Because the story never changed. The story is still the same. We don't know why things happen the way they happen. So how does the story end? It doesn't end. I don't know. It can't end.

There is no end because they're not giving us an ending. Since the start of the pandemic, about a dozen states have told nursing homes to admit patients with COVID-19. And 36 states have taken steps to protect nursing homes and their staff from lawsuits. have taken steps to protect nursing homes and their staff from lawsuits. In all, more than 160,000 residents and staff of nursing homes and long-term care facilities have been killed by the virus. We'll be right back. Here's what else you need to know today. On Tuesday, in a closely watched case, a grand jury decided not to bring charges against police officers in Rochester, New York,

for their wall in the death of Daniel Prude, a 41-year-old Black man. Prude died last year after officers placed a mesh hood on his head and pressed his face into the pavement until he lost consciousness and later died. His death led to weeks of protest in Rochester. I know that the Prude family, the Rochester community, and communities across the country will rightfully be disappointed by this outcome. During a news conference on Tuesday, New York's Attorney General Letitia James expressed frustration with the grand jury's decision.

My office presented an extensive case and we sought a different outcome than the one the grand jury handed us today. And two new studies have found that a variant of the coronavirus discovered in California is more contagious than earlier forms of the virus, with one study finding that the variant produces twice as many viral particles in the body as other variants. The Times reports that the variant, which has already spread quickly in San Francisco, could threaten the steady declines in new infections

that has occurred across California in recent weeks. Today's episode was produced by Jessica Chung, with help from Luke Vanderplug and Nina Potok. It was edited by Lisa Tobin, Michael Benoit, and Anita Bonagio, and engineered by Chris Wood. Special thanks to Jesse McKinley. That's it for The Daily. I'm Michael Barbaro.

See you tomorrow.