Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. We'll begin today on the growing criticism of Governor Cuomo for the alleged cover-up of information, about how many nursing home patients died during the first month of the pandemic last year in New York State, and the underlying question of whether any of his policies contributed to what we know is 15,000 New Yorkers from nursing homes who have perished in the plague.

We'll get a take on this from New York State Senator, Liz Krueger, a Democrat from Manhattan's East Side, who is now calling for the legislature to strip the governor of many of his emergency powers to act things unilaterally as the pandemic goes on. We hope to touch on a few other things with Senator Krueger too, as the legislature is in high season between now and April 1st on so many important matters, but we'll begin with this new scrutiny on the governor.

Senator Krueger, always good to have you on. Welcome back to WNYC.

Senator Krueger: Thank you very much, Brian. Nice to be here.

Brian Lehrer: I guess there are two pieces of what Cuomo is under scrutiny for, which are almost the opposite of one. One is the original policy from last March until May that sent patients recovering from COVID back to nursing homes when they were well enough in order to free up hospital beds, but for many, it was before they tested negative and they wound up fatally infecting other nursing home residents. The other issue is under-reporting the number of nursing home residents who died of COVID because many were counted as having died in the hospital. Let's talk about each.

I guess the headline issue now is on the undercount of how many of the deaths were among nursing home patients, and the governor's failure to report that number quickly to you in the legislature and to the federal government when asked to do so, as well as to the press. Do you think the governor engaged in a cover-up?

Senator Krueger: I think that the governor thought he had specific people he had to respond to in a certain order, and that the legislature was somewhere either not on that list or way down that list, because, again, what his own people said was, we had all these different people we had to report to, and we just weren't sure when we were going to tell you whatever. I don't think I'm making that up. I think I'm badly quoting his chief of staff. I'm not sure. I think it's the only the two issues that you mentioned though, Brian. There are bigger questions for us as the legislature, including do we have such poorly prepared nursing home that large numbers of people die in them because we warmly sent COVID patients to them when they weren't even prepared to deal with less sick people?

I think that's some of the questions we have. Did hospitals get permission to pass off sick elderly people to unprepared nursing home because they didn't want to deal with them? Is that okay? That also falls back on government. Why did we allow those things to happen? I think that for thinking through what do we learn here to avoid ever, ever have this happen again, we have to ask those really hard questions because for me, this is all about not pointing blame at someone, but understanding how government's not going to make these mistakes again.

Brian Lehrer: Those are certainly the more important, I would say, I would agree with you, underlying issues having to do with life and death and systemic repair so nothing like this ever happens again. We understand how it happened in the future. That's most of what we've been talking about on this show with respect to nursing homes in New York State and elsewhere over these months.

Senator Krueger: I appreciate that.

Brian Lehrer: I do want to deal with the immediate issue of this scrutiny and claims of scandal around the governor, and Republicans even calling on him to resign. Here are two clips of the governor addressing the issue yesterday. In this first one, he acknowledges he did something wrong.

Governor Cuomo: We could have spent more time answering press inquiries, who had questions. That's all true, and in retrospect, I'm saying we should have done a better job providing more public information.

Brian Lehrer: The governor gave a reason or an excuse, if you want to see it that way, of 2020 having an especially politicized atmosphere, especially with respect to the Trump justice department and their request for information, but he acknowledges that withholding created its own problems.

Governor Cuomo: The void we created by not providing information, was filled with skepticism and cynicism and conspiracy theories which furthered the confusion.

Brian Lehrer: Senator Krueger, what's your reaction to those clips? Certainly, Trump would have done anything to discredit Cuomo last year based on reality or not. Right?

Senator Krueger: Yes, I think we can agree on that. I also think the governor's second statement is correct, that the absence of providing the information, as the state learned about it, opened everyone up to accusation of hiding information, falsifying information, looking like they were covering things up because they weren't telling us what they knew.

Brian Lehrer: Looking like they were covering things up. Was it a cover-up?

Senator Krueger: This is where I get myself in trouble because I don't know that if I was in a court of law and I was an attorney neither, which is true at the moment, I'm not an attorney and we're not a court of law, I don't know whether I could meet some standard that there was an actual cover-up, or there was the absence of the information, and whether that was enough to be defined as a cover-up. If you look at it politically, the governor is facing a perception that he and his administration knew things and chose not to share that with the public or even the legislature for an extended period of time.

Brian Lehrer: Listeners, I see some of you are calling in already on this, and others are welcome your reactions to, and questions about the Cuomo nursing home issues, or anything else for state Senator Liz Krueger. 646-435-7280.

What questions, Senator, were you looking to answer with the legislature's request about nursing home patients that he did not get back to you promptly on?

Senator Krueger: Well, there were different people who asked different questions. There were different letters sent at different dates. There was a hearing in, I believe it was in August, by the aging committee and the health committee together with a series of questions. There were follow-up letters. Many different questions about how many people died, what did they die of, where did they die, what procedures were followed to try to prevent continued patterns of growth of the deaths, was it true that some nursing homes were telling people to come and take their sick ones home, was it true that some nursing homes were trying to get people placed in hospitals and the hospitals were refusing to take them, was it true that hospitals were actually moving people from their hospital while sick into nursing home settings.

Conceivably, any and all of that could have been taking place depending on what geography you were at. Those were certainly the kinds of reports individual senators and assembly members and other government people were getting from their constituents, who of course were desperately trying to get help for their family, and were also in this strange but understandable situation where they weren't allowed to go visit their sick relatives, and so they're doing all of this hunting and gathering for where is my sick family member. They're not in the nursing home anymore, or they're not in the hospital anymore, where did they go. They can't go look for them because they're not welcome to go into these facilities for obvious reasons, but there's no one to follow up for them on an individual basis.

You would then have people calling you in hysteria and despair, basically, people learning that their family member had passe but no one had told them because it wasn't in the facility they thought their loved one was in. There being math that couldn't possibly work between how many people in theory died in a specific location, and then what was reported about the number of people died, and just too far off to be correct. You had all these different things going on for months and for months.

I think when [unintelligible 00:11:10] report came out, you had just a lot of people going, oh, even if it didn't necessarily answer all their questions, they're like, "Oh, it's not me. I'm not the one who's crazy. This stuff wasn't really going on." I think what happens now is it does all land on the governor's desk to help us understand what happened, why, what we can do about it, and what mistakes we don't have to ever repeat. Now, tied into that. [crosstalk]

Brian Lehrer: Go ahead, tied into that.

Senator Krueger: Tied into that is, what does his administration knowingly decide not to share with us? You can't escape those kinds of questions.

Brian Lehrer: On the heart of the policy itself, and I realized there were many pieces to the policy that you just referenced in that answer. I don't know how many heartbreaking questions we can hear in 160-second answer to a question on the show, but that probably set a record. On the central policy itself, that's received the most scrutiny, moving COVID patients back to nursing homes when they were well enough to go, but not yet testing negative.

The governor would probably say something like this. It was a terrible crisis. There was a shortage of hospital beds. They wanted to discharge people who had recovered enough to be discharged, and when those people came from nursing homes, that's where they went back to. This was only in the first two months of the pandemic, and when they fully realized the consequences that so many people were getting infected by those returning patients and dying, they ended the policy. Would that be a fair or accurate version, in your opinion?

Senator Krueger: From what I know today, yes, but I don't know whether there's other information that I don't have yet.

Brian Lehrer: How much of a scandal would that be as opposed to just making really difficult choices in an unprecedented and unclear situation when all the choices were imperfect?

Senator Krueger: That is exactly where I started with in this conversation, that there are so many questions to be asked and answered, that it's very hard to know where you draw a line and say, this was completely inappropriate and unacceptable versus nobody knew what the right answers were, and so they made some bad decisions.

Brian Lehrer: Let's take a phone call on this piece of it before we go on to the other thing that the governor is being pressed on, certainly by the Attorney General, Letitia James, the issue of counting patients who have died as dying in the hospital, if they died in the hospital, rather than counting them as nursing home deaths when they had been living in nursing homes and whether that matters to anything.

First on the piece we were just discussing, Wesley in Brooklyn, a nurse, you're on WNYC. Thank you so much for calling in.

Wesley: Hi, this is Wesley. I'd like to thank you both for taking my call. In the latter part of my career before I retired, I was in and out of nursing homes in a professional capacity, both in working with nurse practitioners and also doing some Medicare audit. I had some observations to make. The first thing is that you cannot be admitted to a nursing home for long-term care, not for short rehab, without having a multitude of chronic diseases. Why are you in a nursing home? You're in a nursing home because you're incapable of providing for your own activities of daily living such as showering, such as cooking, such as cleaning.

We are talking about a very debilitated population that the families, for one reason or another, have chosen they cannot provide the care for the patient. As a result of this, we need to look at it realistically without trying to point the finger why. These are people that would not have an extended life, and all we're doing is extending it and pointing fingers at each other. I think it's absolutely absurd.

Brian Lehrer: What about the underlying questions that Senator Krueger raised at the beginning, have the nursing homes been so badly managed as a group, and so badly regulated by the state that the sanitary conditions that could have prevented such widespread spread of COVID from those residents who were infected when they were brought back from the hospital or otherwise, that that's a failure of the nursing homes and of the state that really needs to be corrected. True, in your opinion?

Wesley: Brian, I think that the infection of COVID is so highly contagious, that nursing homes we're doing, and I put this in quotes, "their best", but we needed the beds in acute care for the 40-year-olds. We couldn't tie those beds up with 90-year-olds.

Brian Lehrer: Wesley, thank you very much. We're going to take one more similar call. I think it's going to be similar from a former nursing home owner in Montclair. Steve, you're on WNYC. Thank you for calling in.

Steve: Hi. How are you?

Brian Lehrer: Okay, thank you.

Steve: Yes. I believe that the nursing home deaths would have been so much greater than any other deaths for a variety of reasons. In nursing homes, we have to remember that the vast majority of staff are people who commute to those facilities by mass transit and buses. If there's any place they're going to pick up that virus, it's getting to work. Not only that, most of them hold two jobs in two different nursing homes, and so they end work in one, they travel to the next.

The other thing is that, most States, for a variety of reasons, have regulated the size and configuration of nursing homes so that you can't keep folks apart. It keeps the sizes very, very small, and because of Medicare and Medicaid reimbursement, we don't know two occupants in a room is being oppressed so that you're in a position where those that are working or bringing the virus in, and it's very, very hard to keep those residents apart in those facilities. As the nurse said, these residents are in very, very poor condition. If they're living in that environment and have to live there because the families can't take them home, there's going to be many, many more deaths there.

Brian Lehrer: Thank you, Steve. I appreciate your perspective. Between those two callers, Senator, and it's interesting that nobody on the board right now, and it's a thoroughly unscientific sample when we only have 10 lines and it's the 10 people who rushed to the phones first, nobody's calling up to say, "Oh, that Andrew Cuomo." They're calling up more to say things like we just heard from those two callers. Steve there, who used to own a nursing home in Montclair, he said, had brought in the employees, not just the patients who might've had COVID coming back from the hospital or in any other way. We still have the issue of the people in nursing homes who often don't get paid very much. They come from lower-income communities, by and large, which have been much harder hit by the virus that they were, in many cases, the source of spread to the nursing home patients unknowingly in their cases as well by and large. Now we even have a related issue at the moment of there being more vaccine skepticism in the nursing home worker population, then the nursing home resident population based on people who have been offered the vaccine and who've taken it or not taken it to date, and so these issues go on.

Senator Krueger: Yes, and I think it was interesting with Martin's analysis of what the reality of nursing homes are. I would simply say then we should realize we shouldn't have been putting patients with COVID back into nursing homes if we know all these things about nursing homes. I'm not saying that we know--

Brian Lehrer: The density, and just to keep his interesting critique upfront in full, the density created by poor Medicaid reimbursements for nursing home care necessitating that corner-cutting, if you want to call it that.

Senator Krueger: There's a reason we have acute care hospitals, and that is to deal with the sickest people. I know that it's such a hard storyline because the first caller wasn't wrong either. You were dealing with the population in nursing homes who are, by every definition, sicker than the average person in the general public. That's why they're in a nursing home, and they're frail and they're elderly, usually, which also puts them in increased risk of illness and death. Again, those are also reasons why, if you think someone has COVID, that's not the place to be placing them or returning them to.

The other side of the storyline that [unintelligible 00:22:40] was we went through a period where we literally didn't have enough ICU beds for everybody piling into hospitals, which is also-- Before this, did you and I ever imagine that storyline could happen in New York City? I didn't.

Brian Lehrer: No. Actually, no. It begs the question of if we shouldn't have been returning those people recovering from COVID but still positive to the nursing homes, what were the other alternatives?

Senator Krueger: Which is the really hard dilemma. We expanded our hospitals. We turned Javits into a giant hospital. We turned some boat into a giant hospital, but then it didn't seem like we were actually using them. Those could have been the places you place people instead of nursing homes. I don't know. You can tell. I'm a pretty decisive person. I'm finding it very difficult to come up with a simple answer here like yes, this was the right answer. This was the wrong answer.

Brian Lehrer: Good point about Javits, though, which got opened with great fanfare, and then hardly any patients ever got brought there in the period that it was opened.

We have to take a short break. We'll continue with Senator Liz Krueger in just a second, and we will get to the other part of this that's actually breaking out as the more current topic of scrutiny around the governor. The issue of counting patients who came from nursing homes and died as having died in the hospital. That's actually the big headline thing right now, and why that should matter or not. Stay with us.

[music]

Brian Lehrer on WNYC with New York State Senator, Liz Krueger, Democrat from the East Side of Manhattan as we talk mostly about the new scrutiny on Governor Cuomo for his handling of nursing home patients and information about nursing home patients in the early months of the pandemic.

Senator, on the issue of counting patients who have died as dying in the hospital, if they did die in the hospital, rather than counting them as nursing home deaths when they had been living in nursing homes prior to being transferred to the hospital where they died, does that coating matter, and does it suggest the cover-up?

Senator Krueger: It matters I think for a couple of reasons. One, why is it so hard to know that and why was it done wrong? It opens the door to why weren't we just keeping track correctly, and why didn't we know the answers? That then just lets people's minds wander to what else weren't we being told and why were we being told that in that way.

Brian Lehrer: If they did in fact die in the hospital, clear this up for people, if they did in fact die in the hospital, why would it matter that they would have been coded as nursing home deaths because that's where they had been living?

Senator Krueger: I think it's because you have family members saying, “Where is my family member? What happened to them? How did they die?” Then everybody was getting strange or inconsistent answers. Again, if it's your mom and you've learned they died, but you can't seem to get a straight answer between two different institutions, what did she die of, when did she die, where was she when she died, it just sets off all your bells and whistles for somebody who feels death.

Brian Lehrer: I imagine that if the suspicion about the governor early on was that he had instituted a really bad policy of moving the nursing home patients back to the nursing home when they were still COVID positive, if he did something intentionally wrong here, it would have been that he didn't want the number of people who died that way to be bigger than it was. He would have had reason to lean toward listing these 6,000 additional deaths as having taken place in the hospital rather than being, which they did, but calling them hospital deaths rather than calling them nursing home deaths. That would be the political motivation here. Is that the issue?

Senator Krueger: That's probably one of the political issues. I think by definition of this, all leading back to the governor's office, everything about it becomes political whether it ever should have been or not. That’s just the world we live in. Yes, I do believe that for family members, it's, "Were hiding this from me, and for what reason?" Individual by individual, there's not that obvious an answer. When it adds up to 6,000 or 7,000 people, it's like, oh, that's definitely an attempt to change the storyline.

Brian Lehrer: By the way, on the earlier conversation based on the caller who was a nurse, that one of the reasons that nursing home patients are kept in such density is that Medicaid reimbursements for nursing home care are low. The activist, Richard Mollot, who's been a guest on the show several times, director of the Long Term Care Community Coalition that advocates for the best possible nursing home conditions. He just emailed us and said we shouldn't be credulous. That is, we shouldn't believe so easily the nursing home industry’s argument that Medicaid spending is inadequate.

He points out the industry is increasingly for-profit, and they are making a lot of money off those residents. He’s suggesting they have their own reasons for cutting corners and keeping people in closer quarters than they have to reasons of profit. Very interesting. After we had our conversation on the show yesterday about the for-profit prison industry, some similar things could be said, I guess, about the nursing home industry.

Senator Krueger--

Senator Krueger: I appreciate that because that is one of the questions that I have asked my staff to see if they can dig through. What was the percentage breakout of deaths in for-profit versus not-for-profit? I happen to share Richard's believe. New York State doesn't allow for profit medicine in almost any category except nursing homes, and I think it's a serious mistake because nursing homes then are building a profit margin into their formulas, and you see far fewer staff to patient ratios in for-profits and nursing homes. I thank you for reading Richard's [unintelligible 00:30:29].

Brian Lehrer: Thank you for reinforcing it, and good point that a lot of people don't know. There are no for-profit hospitals in New York State. Any of the major hospitals that you may be bringing to mind right now, listeners, they're all not-for-profit. They may have their own problems with hugeness and finances, some of them and whatever, but they're not-for-profit institutions by law in New York. Not every nursing home needs to be.

Senator Krueger, you've been, I think it's fair to say, circumspect in this conversation so far, and speaking in the language of complexity about whether the governor really did anything wrong here or not, but you are one of the leaders calling now for the governor not to have all the emergency powers that he has had during COVID, for the legislature to take some of those back from him. You're not sure that we should--

Senator Krueger: Actually, I didn't sign on with my colleagues, so that I'm not one of those [crosstalk] I said something 10 days earlier.

Brian Lehrer: Oh, I though that you did. Oh yes. Go ahead.

Senator Krueger: 10 days earlier, I said I think it's time for us to ask those hard questions. I didn't come up to include my own conclusion, and I was not one of the people who signed that letter that I think you're referencing to.

Brian Lehrer: I apologize, and I misinterpreted that because you raised the question early on. Why don't you think the legislature should do that?

Senator Krueger: I think the legislature should be asking, is it time to reevaluate, and are there ways to do this differently than we have? I will tell you that's what I think my conference was in the process of having those discussions and evaluating what we believe as a group is the best way to go forward.

I think most of us, when we start to look into this, can see ourselves coming from different places and different understanding about it. I think every single person who's thought about this carefully on is saying how complicated and difficult the decision-making process has been, particularly at the beginning. It's hard to imagine, but we already forget how little we did know at the very beginning.

We seem to purposely ignore a lot of the things we do know now, not the government necessarily, but everyone. Now you don't have to wear a mask, now you don't have to really keep six feet apart. No, no, chill out already. It's been here, it’s done. Lots of people are in denial, but we really knew so little, and we got hit so hard so fast, that speaking for myself, and I think most legislators, we're not looking to go blame people for every imaginable thing that went wrong, because with all the respect, yes, things were going to go wrong. We weren't getting the information we needed. Oh, and we had a federal government who seemed to intentionally not want to tell us the correct information, or provide us the correct equipment. Even to the day he left the White House, we still didn't seem to get vaccine compared to States that liked Donald Trump better.

You have to be very, very careful to point fingers, I believe, and most importantly, for me, you want to think through knowing what we know now, are there some things that we could have, should have changed, or should we do that now? Because this isn't the last time [inaudible 00:34:23] like I say, if we're going live through, unfortunately, and this one isn't going away so fast, is it? We needed to make sure that when we're giving the governor emergency orders of authority, that we know what it is we're giving him, and that we actually think that's the best way to get it done, and maybe, maybe not. [crosstalk]

Brian Lehrer: If the legislature does take back those powers, what would that mean? On openings and closings of schools and restaurants and everything, would every adjustment based on new spikes or improvements in conditions have to be passed as a bill by all the legislators?

Senator Krueger: I think most of us think, no, but I can't speak for my conference because we haven't finished our homework, but we've asked our staff to look at different models from different States. We have looked at exploring, do you have a different set of standards? If it's a health crisis versus an active nature versus an act of war. Then pandemic right now is a health crisis, but we've had storm crises that have generated emergency powers. For those of us who were in the legislature around 9/11, we've had an after war crisis. We really want to think it through.

Brian Lehrer: That process is now gone. I'm going to--

Senator Krueger: That's in process is going on. Yes.

Brian Lehrer: We're coming to what would be the end of our time, and I want to ask our next guest, WNCY's Kai Wright, to be patient. We will get to you shortly, Kai. Now we have a few people calling in with firsthand experience who are blaming Cuomo for the way people, at least some people, died in nursing homes and rehab centers. I want to take Trey in Rocklin County who lost his mother to COVID in a rehab center last year. Trey, I'm so sorry for your loss, and sorry that you have to feel compelled to come out in public and talk about it like this, but thank you for calling.

Trey: Oh, good morning, everybody. She fell. She lived at home. There was nothing wrong with her. She got COVID in the facility, maybe after two or three weeks, she got it. They didn't even tell me right away. I couldn't go in to see her, which was totally different from when she was in the hospital. They were allowing me to come in and see her. The second she went back to that rehab/assisted living/nursing home. I couldn't come. I could only drop off food. They were very understaffed. There was no time I call that people would pick up the phone. I would have to call two, three, four times just to get somebody to pick up the phone. I know they were understaffed, but at the same time, I saw workers in the parking lots talking, no masks, no social distancing. I know how it came in there. Like the other gentleman said that owned one of those places, it comes in through the workers.

Meanwhile, the residents aren't safe. Believe me, unlike what the other lady said, if I could have took my mother home, I would've took my mother home, but she wasn't able to walk on her own at that time, and that's why she was there, to strengthen her lakes. All the people that went through so much in those places, God bless you. Your parent will understand that you did everything you could, but for the governor, may he rot because his mother would never have went through that.

Brian Lehrer: Because he would have the privilege to put his mother in a facility that had more, just better conditions.

Trey: That she would be in a private room. She probably would have her own doctor, her own nurse, everything like trumpet. When you have all of your own people just circling you, surrounding you, focusing only on you. Most people don't have that ability.

Brian Lehrer: Are you saying the governor had the ability as governor to see that more people like your mother could have had that?

Trey: The governor had the ability to use the comfort, to use the Javits, and keep people spread out and give them space, and not push them back and overpopulate a situation that's already understaffed. The governor had that ability, because he's the head administrator, and I would have done it ,and I don't have the power that he has or, "The education", so what happened? It's called I don't care. That's what happened.

Brian Lehrer: Trey. Thank you for your call. I'm sorry you had to relive this again, but very useful for everybody to hear you. We're not going to take the other caller just for time. Senator Krueger, I apologize that we're not going to get to other issues today, but when 15,000 New Yorkers have died in less than a year in one circumstance or the nursing home patients, obviously we need to spend sufficient time on it. Give us a closing thought, and then we'll have you back on other things another time.

Senator Krueger: Thank you. The call from Trey's exactly the same call my office got over and over and over again. I believe every legislator's office got it over and over and over again. When I was asked, why did I make a statement 15 days ago now saying we have to look much harder at all this to understand, my only motivation that day was because how do you not tell all the people out there like Trey, that you're going to do everything you can to understand what did really happen, whether there were other alternatives, why they weren't used, and to make sure that we don't allow this storyline to ever happen again. [crosstalk]

Brian Lehrer: State Senator Liz Krueger, Democrat from the East Side of Manhattan. We always appreciate when you come on with us. Brian Lehrer on WNYC. Kai joins me in a minute.

 

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