Albany Times Union

Cuomo’s office won’t disclose its exchanges

- By Brendan J. Lyons

Gov. Andrew M. Cuomo’s office is refusing to make public its correspond­ence with the U.S. Justice Department related to the administra­tion’s handling of nursing homes and other long-term care facilities during the coronaviru­s pandemic.

The correspond­ence sought by the Times Union was triggered, in part, by an Aug. 26 letter to Cuomo from the Justice Department’s Civil Rights Division that sought a trove of records from the administra­tion regarding the relatively small number of public nursing homes in New York, including “all state-issued guidance, directives, advisories, or executive orders regarding

admission of persons to public nursing homes ... as well as the dates each such document was in effect.”

The Justice Department had sought similar records at that time from Michigan, New Jersey and Pennsylvan­ia, noting in a release that those states and New York had “required nursing homes to admit COVID -19 patients to their vulnerable population­s, often without adequate testing.”

In October, the same unit of the Justice Department sent a second letter to New York — this time to the state health department — requesting records on private nursing homes and other longterm care facilities in New York.

The Cuomo administra­tion’s exchanges with the Justice Department since last year, including any data provided to the U.S. Department of Health and Human Services, have been a focus of a separate investigat­ion by the FBI and U.S. attorney’s office in Brooklyn. That probe, which was first reported by the Times Union on Feb. 17, is ongoing and has included interviews with dozens of current and former state health department officials in New York.

In a letter this week, the governor’s office denied the newspaper’s request for copies of its correspond­ence with the

Justice Department — which Cuomo had earlier suggested might be released — by asserting those records are exempt from disclosure because they were “compiled for law enforcemen­t purposes” and the disclosure “would ... interfere with law enforcemen­t investigat­ions.”

It’s unclear how the Cuomo administra­tion’s correspond­ence with the Justice Department’s Civil Rights Division constitute­s records “compiled for law enforcemen­t purposes.”

In its denial letter, the governor’s office also argued that portions of the records are exempt

from disclosure because their release “would constitute an unwarrante­d invasion of personal privacy.”

The administra­tion’s refusal to make public its exchanges with the Justice Department follow a tumultuous back-and-forth between Cuomo’s office and the Legislatur­e, which had been requesting similar records since last August. On Feb. 10, Secretary to the Governor Melissa Derosa and other administra­tion members met in secret with key Democratic lawmakers in the Legislatur­e and Derosa acknowledg­ed they had withheld releasing full data on COVID -19 deaths in nursing homes because of their concerns about the Justice Department inquiries.

Cuomo and his top aides had since August characteri­zed the Justice Department’s interest in its handling of nursing homes during the pandemic as a political hit orchestrat­ed by members of President Donald J. Trump’s administra­tion. But they have not assigned that same characteri­zation to the more recent investigat­ion by the FBI and U.S. attorney’s office in the Eastern District of New York.

The investigat­ion being led by the FBI and federal prosecutor­s in Brooklyn is focusing on the data compiled and submitted to federal authoritie­s by Cuomo’s administra­tion. That effort is examining whether anyone was directed to manipulate or change data, including to benefit the governor’s public profile.

Last year, Cuomo authored a book on his handling of the pandemic. According to people briefed on discussion­s among members of his administra­tion, there were discussion­s about keeping the governor’s public profile high as he became a national figure in his handling of the pandemic following months of daily briefings, including many that were broadcast on national cable outlets.

At a news conference on Feb. 19, Cuomo said his administra­tion had provided “truthful informatio­n” to the Justice Department and that it “is a lie to say any numbers were inaccurate.”

The administra­tion’s correspond­ence with the Justice Department included a Sept. 9 letter that was signed by a state Department of Health attorney in response to the federal agency’s Aug. 26 demand letter. It is among the records that Cuomo’s office is refusing to make public.

It has not been made clear whether the Aug. 26 letter from the Justice Department’s Civil Rights Division and the investigat­ion by the U.S. attorney’s office in Brooklyn are related. However, the participan­ts in the interviews being directed by the Brooklyn office include officials with the Justice Department’s main office in Washington, D.C., as well as investigat­ors with the U.S. Department of Health and Human Services, according to people with direct knowledge of those interviews.

Cuomo’s office also has so far declined to release copies of any subpoenas that have been served on the administra­tion, including the governor, in connection with the federal investigat­ion.

During that Feb. 19 news conference, Cuomo also had sought to explain why his administra­tion had withheld informatio­n from the Legislatur­e (in addition to the press and the public.)

“We said we would pause the state Legislatur­e’s request because we gave (the Department of Justice) precedence — true. We paused the state request and we told them that we paused the state requests. They were told and they knew,” Cuomo said. “Well, some were offended that they weren’t given precedence. I understand they are offended . ... I’ve spoken to the legislativ­e leaders and we agree that we’re in the midst of dealing with a real pandemic.”

Two days before the governor made those comments, the Times Union had reported the probe by the U.S. attorney’s office in Brooklyn was in its early stages and focusing on the work of some of the senior members of the governor’s task force.

Nearly three weeks after the governor’s coronaviru­s task force was announced last year, the state health department issued an order on March 25 directing nursing homes and other longterm care facilities to accept residents who were being discharged from hospitals even if they were still testing positive for the infectious disease. The administra­tion said it was following guidance from the U.S. Centers for Disease Control and Prevention.

The directive, which was rescinded less than two months later, has been the focus of a firestorm of criticism directed at Cuomo’s administra­tion, including allegation­s that the order had contribute­d to the high number of fatalities of nursing home residents in New York. That assertion was largely dismissed in a report by the Department of Health that was released in July.

In January, the office of Attorney General Letitia James issued a scathing report that concluded the practice may have increased the risk of COVID -19 infections at the congregate facilities and that Cuomo’s administra­tion had delayed reporting that thousands of additional nursing home residents died at hospitals after being infected in their residentia­l facilities.

 ?? U.S. Department of Justice ?? The U.S. Department of Justice’s Civil Rights Division sends letters to multiple governors seeking data, policies and directives regarding the states’ nursing homes’ pandemic response. The request includes something the state had delayed for months — the number of “those who died in a public nursing home or after being transferre­d to a hospital or other medical facility.”
U.S. Department of Justice The U.S. Department of Justice’s Civil Rights Division sends letters to multiple governors seeking data, policies and directives regarding the states’ nursing homes’ pandemic response. The request includes something the state had delayed for months — the number of “those who died in a public nursing home or after being transferre­d to a hospital or other medical facility.”
 ?? Brendan Mcdermid / Associated Press ?? New York Gov. Andrew M. Cuomo speaks at Rochdale Village Community Center in the Queens borough of New York on April 5.
Brendan Mcdermid / Associated Press New York Gov. Andrew M. Cuomo speaks at Rochdale Village Community Center in the Queens borough of New York on April 5.

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