State Health Commissioner Howard Zucker during a coronavirus briefing in...

State Health Commissioner Howard Zucker during a coronavirus briefing in April. Credit: Office of the Governor / Darren McGee

ALBANY — State legislators on Monday questioned Gov. Andrew M. Cuomo’s health commissioner over the number of deaths in nursing homes since the state issued a March 25 directive requiring nursing homes to accept COVID-19 patients.

State Health Commissioner Howard Zucker, however, said new data shows a spike in deaths afterward can’t be attributed to that directive.

At a joint hearing held virtually with Senate and Assembly committees, legislators from both parties also accused the Cuomo administration of failing to fully quantify the deaths in nursing homes. The administration has estimated more than 6,400 nursing home residents are among more than 25,000 New Yorkers who died of the virus.'

But legislators say that's misleading because of the administration’s way of counting deaths, which can list the death of a nursing home residents as hospital deaths if that’s where they were transferred before dying.

“We know that is an undercount,” said Senate Investigations Committee Chairman James Skoufis (D-Woodbury). He quoted Cuomo as saying the virus could spread “like fire in dry grass” among elderly, ill New Yorkers like those in nursing homes.

“It’s now up to the Legislature to determine who lit the match and how and why the fire fanned out,” Skoufis said.

Others directly questioned the administration’s motives.

“It seems that what you are doing is just trying to minimize (nursing home deaths) … to make you look better than you actually did,” said Senate Health Committee Chairman Gustavo Rivera. “That’s a problem, bro.”

Zucker said the administration is still trying to determine the number of deaths.

“We have been incredibly transparent on this information,” said Zucker, who was questioned for more than two hours. “You know me,” he told Rivera. “I will not provide information unless I know that it is absolutely accurate … we do not want to double-count.”

“It seems, sir, in this case you are choosing to not do it, so you can look better,” Rivera responded. “No other state keeps the numbers like this.”

Monday’s legislative hearing will be followed by a second joint hearing Aug. 10.

Zucker also defended the March 25 guidance that some legislators blame for introducing the virus to nursing homes.

The advisory to administrators of nursing homes, abbreviated as “NH,” stated: “No resident shall be denied readmission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.”

“All NH must comply with the expedited receipt of residents returning from hospitals to NHs,” the March 25 guidelines state.

Zucker said legislators who call that an order is promoting a “false narrative.” He cited previous federal guidance and existing state law that states nursing homes can reject admissions if the homes can't care for them adequately.

State Sen. Sue Serino (R-Poughkeepsie), however, said the stern wording of the guidance made nursing home operators think “that was not an option.”

Zucker also said he and the governor used the best medical evidence and projections that said the virus would require more than twice the number of hospital beds that was available. Zucker referred to data that was part of his department’s “retrospective analysis” in a July report that found no blame for deaths from the March 25 guidance. Zucker said the department’s research of antibodies shows the peak of deaths could be attributed to infections before March 25 carried by staff and visitors who showed no symptoms at the time.

“As the admissions into nursing homes increases, the deaths were decreasing,” Zucker said. “It contradicts the false narrative.”

Later in the hearing, Michael Balboni of the Greater New York Health Care Facilities Association, said the virus may have gotten into nursing homes in many ways. But under questioning about the March 25 guidance, Balboni said: “We believe this is part of it.”

“The Department of Health worked day and night trying to get this right,” said Balboni, a former Republican state senator. “Was the response always perfect? No … but we knew they had everyone’s best interests in mind.”

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