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Republicans Draft Subpoena for Cuomo Admin on Nursing Homes, Urge Dems to Move Forward
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State Sen. Sue Serino (FILE)
Credit: New York State Senate

COVID-19 & New York's Nursing Homes

Republicans in New York have drafted a subpoena to be sent to the state Department of Health seeking more detailed records on the state’s handling of COVID-19 in nursing homes, but would need Democrats to sign on to the measure for it to move forward.

The subpoena, if issued, would legally require the agency to submit the requested information to the Legislature unless the state Department of Health tries to fight it in court.

“You have to know where you went wrong in order to correct things,” said Sen. Sue Serino, the top-ranking Republican on the Senate Aging Committee.

Democrats have said they’re hoping to obtain more information on the state’s decisions related to nursing homes voluntarily, rather than resorting to legal action.

They’ve given the state Department of Health a deadline for that request of February 25 — the day lawmakers are scheduled to hold a public hearing on health-related portions of the state budget. State Health Commissioner Dr. Howard Zucker is expected to testify.

Mike Murphy, a spokesperson for Democrats in the State Senate, said Wednesday that Democrats have already made progress by demanding more information from Zucker, and that they plan to keep up the pressure.

“This is nothing but a cheap political stunt. When the GOP were in power, they failed to issue one single subpoena over the course of an entire decade. Now is the time for real leadership, not grandstanding,” Murphy said.

“We've received the full nursing home numbers only after our own Democratic senators stood up to the governor and threatened a subpoena nine days ago and the attorney general issued her report. We will continue to lead and use all tools at our disposal to get all information related to these important issues.”

Zucker, last week, released the number of nursing home residents who died in New York after being transferred to hospitals. That was after a report from the State Attorney General’s Office claimed the agency had undercounted the number of COVID-19 nursing home deaths.

In a statement, Zucker said that 3,829 nursing residents had died after being transferred to the hospital — a number previously not known by the public. Until last week, the agency had only reported the number of residents who died while still at a nursing home.

Senate Investigations Chair James Skoufis, D-Orange, said last week he would support a subpoena, but that a decision to issue one would be made with other Democrats in the Senate, including the leadership of the conference.

Republicans said on Wednesday that they don’t want to rely on the agency to come through with the information they’ve sought and would rather issue a subpoena immediately.

But they don’t have a lot of power to make that happen at the moment. Republicans are the minority party in both the State Senate and Assembly, so Democrats would have to sign on to the measure for it to move forward.

Lawmakers are seeking a broad collection of information, data, and documents related to the state’s handling of nursing homes over the course of the COVID-19 pandemic.

Among their requests is a complete count of nursing home residents who died from the virus. The state had previously only reported residents who died at nursing homes as deaths associated with those facilities, and left out residents who died in the hospital.

Some of that data will likely be available by early next week. The Empire Center, a government watchdog group, won a lawsuit against the Cuomo administration Wednesday that sought a full count of nursing home residents who died from the virus — regardless of location.

In a ruling out of state court in Albany, State Supreme Court Justice Kimberly O’Connor ruled that the state Department of Health had violated the state Freedom of Information Law by not fulfilling a request from the Empire Center for those records filed in August.

O’Connor gave the state five days to provide the Empire Center with the documents it requested.

“DOH does not, in the Courts’ opinion, offer an adequate explanation as to why it has not responded to that request within its estimated time period or date,” O’Connor wrote.

A spokesperson for the state Department of Health said in response to the ruling that the agency was already in the process of compiling the numbers, and planned to post them publicly.

“With the preliminary audit complete, we were already in the process of responding to the their FOIL request, and updating DOH’s website with publicly available information." the spokesperson said.

Republicans said Wednesday that, aside from a more detailed breakdown of nursing home statistics, they’re also seeking communications between Cuomo’s office and the state Department of Health on decisions made related to nursing homes.

Among them is a controversial executive directive issued in March that barred nursing homes from refusing to admit residents diagnosed with COVID-19, as long as the facility had the resources to take care of them.

The state Department of Health has claimed that there’s no evidence to suggest that the directive contributed to more deaths at those facilities, but lawmakers want a behind-the-scenes look on why that directive was issued, and how it was discussed behind closed doors.

Serino said they’re particularly interested in how Cuomo interacted with health experts at the agency, and whether decisions were made based on their advice.

“We had asked the commissioner at the [previous] hearing if there were decisions independently made, and he kind of danced on the answer,” Serino said.

The Cuomo administration has said, repeatedly, that it was following guidance from the U.S. Centers for Disease Control when it issued that directive.

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