Zucker silent on nursing home investigation

Health Department Commissioner Dr. Howard Zucker is seen at Gov. Andrew Cuomo’s COVID-19 briefing in Manhattan on Sept. 24. Courtesy of Gov. Andrew Cuomo’s Office

ALBANY — State Health Department Commissioner Dr. Howard Zucker deflected or would not answer specific questions at a legislative budget hearing Thursday about an ongoing federal probe into the state’s handling of COVID-19 nursing home policies, as well as the total number of virus deaths in facilities the state has taken months to release.

Zucker declined to answer Sen. Tom O’Mara, R-Elmira, a ranking member of the Finance and Investigations and Government Operations Committee, about whose decision it was to withhold the state Legislature’s request last August for the state’s total number of COVID-19 deaths in nursing homes.

“There is a process here, and I am sure you respect the process,” Zucker said. “The investigation is ongoing and I am not going to be disrespectful of a process that involves any kind of federal inquiry.”

The U.S. Justice Department opened an inquiry Aug. 26 requesting the numbers of public congregate facilities. Justice Department counsel sent a subsequent inquiry Oct. 28 requesting data from the state’s private nursing homes.

Zucker would not answer if he or any member of the Health Department has been subpoenaed to testify before a grand jury by federal investigators.

The commissioner said his legal team is analyzing data about what and when to publicly release the state nursing home data shared with the federal government, but continues to focus on responding to the ongoing pandemic. Zucker would not provide a timeframe for release of the data.

“My time here is up, but I find virtually everything you’ve said here today to be without credibility,” O’Mara said.

“I’m sorry to hear that,” Zucker replied.

Dozens of senators and members of the Assembly questioned Zucker on Thursday about his department’s controversial March 25 memo that allowed virus-positive nursing home patients to return to their facility to recover, and the state’s seven-month delay in releasing its total number of COVID fatalities in adult care facilities.

Many have criticized the order and demanded an independent investigation into the decision to determine if it caused additional virus deaths.

“They brought it in inadvertently at a time we did not know about spread,” Zucker said of nursing home staff. “People forget about the actual way this disease ends up spreading and how long it’s contagious and what the risks are.”

COVID-19 patients are contagious to others up to 48 hours before showing symptoms, Zucker said, or up to four days after contracting the disease.

Sen. Dan Stec, R-Glens Falls, pressed the commissioner Thursday and said he’s troubled by the partisan and back-door conversations about the issue.

“My constituents want to be involved in the discussion,” he said.

Stec asked Zucker about the March 25 policy.

“If only one person has (COVID-19) in the whole facility, the bottom line is, it’s in the facility,” Zucker said. “It’s not a fair question to ask whether the room had 20 people ... the disease is there. If I walked into a room with one person with COVID, I’d be as concerned as someone walking into a room with 20 people with COVID.”

Zucker told Stec he would send the senator a list of state nursing homes that accepted COVID-positive patients back last year.

The commissioner reiterated, as he and Gov. Andrew Cuomo have for several months, that late last March, national experts projected up to 140,000 New Yorkers hospitalized with COVID-19. The state typically has 50,000 hospital beds statewide, with about 30,000 downstate.

“By the time it was in the community, it was in there long before we knew it was spreading,” Zucker said. “How do you explain to me that without anyone coming back to the nursing homes that are positive from COVID ... when no one was coming in as visitors, we still have deaths in the nursing homes?”

At the time of the March 25 directive, Zucker argued Dr. Anthony Fauci, the nation’s leading infectious disease expert, and health experts around the world believed people infected with COVID-19 who did not exhibit symptoms, or were asymptomatic, did not easily transmit the disease to others.

Scientists and U.S. Centers for Disease Control and Prevention revised guidance last summer that COVID is spread by asymptomatic patients.

The Health Department recently updated its self-published report with the nursing home fatality counts released this month that more than 15,000 New Yorkers died from COVID-19 in congregate facilities, including presumed deaths. Cuomo and his administration acknowledged just under 9,000 virus fatalities in congregate facilities since last March.

The state’s report, first released last July, determined staff and employees inadvertently brought COVID-19 into nursing homes. The updated fatality count did not change the state’s findings, Zucker said, that about 98% of New York’s 613 nursing homes had community spread of COVID-19 in its congregate facilities before March 25, according to the report.

“I support the July assessment and continue to support it to this day,” Zucker said. “I stand by this report. I stood by it in July. We know when it’s in the community, it’s going to end up in the facility and we know what ended up happening, and that is what is in the report.”

The department released additional guidelines May 10 that superceded the March 25 memo, which required nursing home staff to negatively test for the novel coronavirus twice each week.

Nursing home visitation was suspended in March, but is now permitted in state congregate facilities that have not had a COVID-19 case for at least 14 days, according to Sept. 15 guidance from the Health Department. Guidance was updated this week to expand visitation in nursing homes as virus cases continue to decline statewide.

Beth Garvey, special counsel and a senior adviser to Cuomo, commented on the March 25 order in a separate conference call with reporters Thursday morning. The state’s March 25 memo mirrored CDC’s and Center for Medicare and Medicaid Services guidelines from March 13 dictating a nursing home could not discriminate in the admission of a patient based solely on the diagnosis of COVID-19 and only accept a patient if the facility can provide proper care.

During Thursday’s hearing, Zucker declined to answer a question from Assemblyman Jarrett Gandolfo, R-Montauk, about Cuomo’s emergency spending and decision-making authority — granted last March because of the pandemic — continue to be necessary.

“Is there any public health reason to allow the governor to retain emergency powers?” the assemblyman asked.

“That is a question that is outside of my scope and is above my pay grade,” Zucker said. “I leave that for others to answer.”

Zucker addressed the nursing home controversy in his initial testimony to the Legislature.

The commissioner said he exclusively prepared the testimony after lawmakers asked if Cuomo’s office influenced or limited the statements.

“Yes, there were deaths — too many. Yes, nursing home residents were and remain among the most vulnerable and yes, there have been questions ... What we said in July remains true today,” Zucker said. “The virus, despite our collective best efforts to prevent it, was inadvertently brought into the nursing homes by dedicated staff at a time when we did not know enough about the science. Tragic. Troubling. But true.

“If some wish to find fault with the process, I ask them to remember that we continue to battle this pandemic,” he added. “As a resident of New York, I believe in transparency. As a doctor I believe in accuracy. We did our best to achieve both.”

The Health Department continues to inspect nursing homes for instances of neglect or improperly following COVID-19 regulations, including sufficient personal protective equipment.

The department has issued more than 1,000 violations, or about $1.3 million in fines, out of 2,400 facility surveys since the start of the pandemic last March, Zucker said.

The commissioner was the second of 48 witnesses Thursday as part of a bicameral hearing on Cuomo’s executive budget proposal for Fiscal Year 2021-22 on health and Medicaid — the final of 13 held this month.

Thursday’s hearing was originally rescheduled from Feb. 3. Zucker asked that it be postponed because of a scheduling conflict to attend the governor’s regularly scheduled COVID-19 briefing. The governor did not hold a briefing that day.

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