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Cuomo's Nursing Home Investigation May Present "Conflict Of Interest"
By
Ross Barkan
Published May 7, 2020
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Mike Groll/Office of Governor Andrew M. Cuomo
By
Ross Barkan
Published May 7, 2020
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At least 5,000 New Yorkers have died from the coronavirus inside nursing homes, making up around a quarter of all COVID-19 deaths in the state. “We’re going to undertake an investigation of nursing homes now to make sure they’re following the rules,” Governor Andrew Cuomo said during a press conference on April 23rd, announcing a joint investigation with Attorney General Letitia James. “Nursing homes—they are our top priority, they have been from day one.”
For some nursing home advocates and elected officials, the announcement raised questions.
Would the investigation include a review of the state’s actions—including Governor Cuomo’s order forcing nursing homes to admit COVID-19 patients? And how can the AG and the governor fairly investigate an agency that the governor controls?
Though the facilities are often privately-run, it’s the state Department of Health that licenses the 613 long-term care facilities, and sets regulations for how they operate.
Nursing home directors say they begged the state for more protective equipment and tests, as well as help relocating residents who tested positive for COVID-19, but that their pleas went unanswered. Volunteer medical workers rarely made it to besieged nursing homes. The state is supposed to make unannounced inspections of nursing homes every 9 to 15 months; it’s unclear how many the state has actually visited during the pandemic.
Meanwhile, the number of workers who called out sick rose, leading to deplorable conditions at several facilities. “They’re slumped over in bed, just laying there rotting,” one nurse told Gothamist, describing the neglected patients at a Queens nursing home.
How and why this all happened isn’t likely to be answered by the joint investigation between DOH and the AG’s office. The Department of Health, for now at least, isn’t a target of the investigation, to the consternation of some advocates.
“We’re under no illusion of whose side Cuomo is on and it’s basically never been senior patients, never been these kind of healthcare workers who care for them,” said Caitlin Kelmar, a spokesperson for the “Ain’t I a Woman?!” Campaign, a coalition asking Cuomo to provide sufficient protective personnel protective equipment (PPE) and end 24-hour shifts for attendants, among other demands. “The fact that he’s leading a task force to investigate his own mismanagement of an entire industry doesn’t give us a lot of hope.”
The state legislature could end up providing additional oversight. There are no hearings currently scheduled to address the COVID-19 deaths in nursing homes, but Assemblymember Ron Kim, a Queens Democrat who introduced legislation to create new regulations for nursing homes and residential healthcare facilities during a state disaster emergency involving a disease outbreak, is hoping to hold a virtual one soon. The Democrat-controlled legislature has been largely sidelined by Cuomo since the pandemic began in March.
“I think there needs to be an independent oversight investigation as well as a hearing in the Assembly and Senate. That’s what we are here for,” Kim said. “We should be holding joint oversight hearings to hold the administration fully accountable for the decisions they’ve made.”
The attorney general is, of course, the state’s lawyer, and the office collaborates with the executive branch fairly frequently.
“It is very hard for an agency to investigate itself. It doesn’t mean it’s a matter of corruption. It’s just a matter of a conflict of interest,” said Berit Berger, the executive director of the Center for the Advancement of Public Integrity at Columbia University. “Certainly by having the executive involved, it’s opening it up for critics to say this isn’t a fair investigation.”
James has investigated nursing homes before. Last year, she announced the arrest and arraignment of staff for leaving a resident freezing outdoors. Much of the work of safeguarding elderly residents in New York comes through the Attorney General’s Medicaid Fraud Control Unit (MFCU), which, as its name suggests, roots out theft of services related to Medicaid reimbursements. The rigor of James’ investigations into nursing homes and Medicaid fraud has not been publicly questioned since she took office at the beginning of 2019.
“We have received complaints about numerous nursing home facilities across the state and are actively investigating these complaints,” said Delaney Kempner, a James spokesperson. “We remain concerned about fatality rates, treatment, infection rates, and whether nursing homes are adequately communicating with families of residents and will continue to do everything in our power to protect these residents.”
In April, Cuomo said the DOH and James would investigate questions like whether nursing homes were following regulations like requiring PPE for staff and doing temperature checks; notifying all residents and their family within 24 hours if any resident tests positive for COVID-19; and quarantining residents who tested positive.
The logistics of the joint investigation were not detailed on the record at any length. The Department of Health and MFCU already work together. What the April announcement could amount to, simply, is the sharing of additional information between the AG’s office and DOH. There are no new staffing or resource allocations for the investigation.
Those familiar with the workings of the AG’s office see the joint investigation as a worthy exercise, regardless. “The commitment of the governor and the attorney general to investigate violations of data reporting shows their commitment to the truth,” said Gregory Krakower, a former senior adviser and counselor to the attorney general and current law professor at the Benjamin N. Cardozo School of Law.
The inherent nature of the attorney general’s office, no matter who holds it, may preclude effective investigations of the executive branch, since it derives some of its power and most of its funding from the governor. Even the ability to prosecute Medicaid fraud is one that the governor grants the attorney general, since there is no state statute allowing for that power, according to experts. By federal law, all states must have a Medicaid Fraud Control Unit, which is by far the largest criminal prosecution arm of the AG’s office.
If the governor doesn’t consent to expand the power of the attorney general, the state comptroller can. Under Eric Schneiderman, James’s predecessor, the attorney general and the state comptroller, Tom DiNapoli, teamed up to grant Schneiderman the power to investigate, and criminally prosecute, cases involving fraud and the waste of taxpayer money discovered through comptroller audits.
Assemblymember Kim believes the biggest mistake the Cuomo administration made was not purchasing PPE for nursing homes far sooner, in January and February. In addition to legislative oversight, he is hoping for a more independent, outside investigator beyond the attorney general’s office to probe wrongdoing, akin to the federal monitors installed to root out police misconduct. “We have to push for as much oversight as possible,” he said.
There is precedent for such a maneuver. In the 1970s, Governor Hugh Carey appointed a young attorney named Charles Hynes as special state prosecutor to investigate New York’s scandal-scarred nursing home industry. Hynes would use his post to root out Medicaid fraud, winning national plaudits for his investigations. Later on, he was elected Brooklyn district attorney.
Cuomo, however, has given no indication he would name such a prosecutor and lawmakers beyond Kim haven’t yet called for one. At the time, local prosecutors chafed under Hynes’s expanded powers and it’s unclear Cuomo would want to alienate James.
Cuomo’s office did not return a request for comment.
Tagged
COVID-19
andrew cuomo
letitia james
nursing home
analysis
Ross Barkan
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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