ALBANY — As New York moves from coronavirus crisis to sustained recovery, there remains a heartbreaking fact that some are trying to explore and others seem to be trying to exploit: Nearly 6,500 people have died of the virus in nursing homes and other long-term facilities in the state.
Republicans in Washington and elsewhere have attacked Gov. Andrew M. Cuomo for his role in, and response to, those deaths; Mr. Cuomo has returned fire, accusing his foes of politicizing a human tragedy and arguing that the blame for the number of deaths lay with infected health care workers, not his own policies.
The death toll — a figure that surpasses that of many states — has also inspired questions from Mr. Cuomo’s fellow Democrats, who rule the State Legislature and have scheduled hearings on the issue next month.
The tension and pain surrounding the topic have bled into the debate over a related bill that is expected to be passed on Thursday by the Legislature.
The initial goal of the bill’s supporters was to void a last-minute provision, buried into the state budget just before it was passed in early April, that gave nursing homes and hospitals broad immunity from lawsuits stemming from their failure to protect residents from death or sickness caused by the coronavirus.
But after considerable pushback from the hospital and nursing home industries, and legal questions about its scope, the legislation that’s being advanced is far weaker, with the immunity merely narrowed.
“This is just a first step,” said the bill’s lead sponsor, Assemblyman Ron Kim, of Queens, where nearly 1,000 nursing homes residents died. “We’re coming back after the hearings to see how we can provide retroactive justice for anyone who feels like they’ve been wronged.”
The fight over the bill highlights how fraught the issue has become for Mr. Cuomo and other politicians, as well as nursing home executives, and how sensitive all involved have been to suggestions that they are to blame for the deaths.
Mr. Cuomo, a third-term Democrat, has pushed back aggressively on assertions that his administration’s directive of March 25, which effectively ordered nursing homes to accept Covid-positive patients from hospitals, led to more deaths.
In response to that criticism, the State Health Department released a report that essentially absolved the state of any blame; the report concluded that “most patients admitted to nursing homes from hospitals were no longer contagious when admitted and therefore were not a source of infection.”
The report said that the disease was spread by “thousands of employees” who had the disease and did not know they were contagious.
Those conclusions did little to stem Republican criticism that the governor was to blame for thousands of deaths, allegations carried on Twitter and marked by hashtags like #KillerCuomo.
In a letter sent to Mr. Cuomo in July, Representative Steve Scalise of Louisiana, the Republican minority whip who is the ranking member of a House subcommittee on the coronavirus crisis, said the state report was filled with “blame-shifting, name-calling and half-baked data manipulations.”
Mr. Cuomo said his political enemies were spreading lies and “ludicrous” accusations.
“It was cheap, it was ugly, it was political, it was Fox News, it was the haters and it was a lie,” Mr. Cuomo said in a July 10 radio interview, a day after Mr. Scalise sent his letter. “It’s just a pure lie, not based on any fact, but they did it for political expediency.”
For the families of people who died in nursing homes and assisted living facilities in New York, the political friction overshadowed the importance of seeking accountability for deaths that they believe were preventable.
Many were outraged when the state included the immunity provision in the budget. Advocates called it among the most restrictive protections against lawsuits in the country.
“Having liability can cause a facility to be more diligent and prevent incidents occurring that will cost them money,” said Susan M. Dooha, the executive director of the Center for Independence of the Disabled. “The preventive power of liability has been muted.”
Under the budget provision, health care facilities and their employees were protected from civil or criminal liability for the duration of the Covid-19 emergency, which Mr. Cuomo declared on March 7 and is still in force.
The legal immunity did not cover gross negligence or intentional criminal misconduct, but would most likely cover a variety of other scenarios, including harm that arose from a shortage in staffing or protective equipment.
The provision was fought for and celebrated by industry lobbyists like the Greater New York Hospital Association, which has close ties to Governor Cuomo and has given hundreds of thousands of dollars to Democratic campaign committees in Albany in recent months (as well as lesser amounts to committees for Republicans, who sit in the minority in both legislative chambers).
Under Mr. Kim’s bill, that immunity would be modified to allow legal action if it could be argued that a health care facility or health care professional had failed to prevent a patient from contracting the coronavirus, or had not tried to safeguard them from infection.
“We now know how to prevent and arrange for Covid,” said Mr. Kim, who is a Democrat. “So we will be able to hold nursing homes accountable.”
The bill will also specify that the immunity clause will “only apply to Covid-19 related care and treatment.” That will restore a path for medical malpractice suits unrelated to Covid-19, said Richard Gottfried, the chairman of the Assembly Health Committee.
The Coronavirus Outbreak ›
Frequently Asked Questions
Updated July 22, 2020
Why do masks work?
- The coronavirus clings to wetness and enters and exits the body through any wet tissue (your mouth, your eyes, the inside of your nose). That’s why people are wearing masks and eyeshields: they’re like an umbrella for your body: They keep your droplets in and other people’s droplets out. But masks only work if you are wearing them properly. The mask should cover your face from the bridge of your nose to under your chin, and should stretch almost to your ears. Be sure there are no gaps — that sort of defeats the purpose, no?
Is the coronavirus airborne?
- The coronavirus can stay aloft for hours in tiny droplets in stagnant air, infecting people as they inhale, mounting scientific evidence suggests. This risk is highest in crowded indoor spaces with poor ventilation, and may help explain super-spreading events reported in meatpacking plants, churches and restaurants. It’s unclear how often the virus is spread via these tiny droplets, or aerosols, compared with larger droplets that are expelled when a sick person coughs or sneezes, or transmitted through contact with contaminated surfaces, said Linsey Marr, an aerosol expert at Virginia Tech. Aerosols are released even when a person without symptoms exhales, talks or sings, according to Dr. Marr and more than 200 other experts, who have outlined the evidence in an open letter to the World Health Organization.
What are the symptoms of coronavirus?
What’s the best material for a mask?
Does asymptomatic transmission of Covid-19 happen?
- So far, the evidence seems to show it does. A widely cited paper published in April suggests that people are most infectious about two days before the onset of coronavirus symptoms and estimated that 44 percent of new infections were a result of transmission from people who were not yet showing symptoms. Recently, a top expert at the World Health Organization stated that transmission of the coronavirus by people who did not have symptoms was “very rare,” but she later walked back that statement.
But opponents quickly pointed to what they consider shortcomings of the legislation, including a stipulation that the bill would only affect future cases and would not be applied retroactively — a clause that they said would hurt those most affected.
“The overreliance, the overacceptance of the industry’s lobbying efforts, and the credulity that we give to the arguments they make is what led to a large extent to tragedies for families across the state,” said Richard Mollot, executive director of the Long Term Care Community Coalition.
Nursing home facilities were encouraged to reach out to lawmakers to voice their concerns, and the Greater New York Hospital Association sent legislators a two-page memo on Tuesday outlining its opposition to any legislative action meant to scale back immunity.
“New York hospitals are deeply committed to caring for New Yorkers to the best of their abilities at all times, including in a possible resurgence of Covid-19,” the memo said. “The Legislature should not take actions to undercut or chill that commitment.”
Industry groups argued that repealing immunity could pose constitutional issues and open the floodgates to a barrage of retroactive lawsuits against health care facilities. They said the legislation did not take into account the broad impact a resurgence of the virus could have on the way hospitals and nursing homes care for all patients and residents, not just those ill with the coronavirus.
A surge in cases, for example, could lead to a shortage of health care workers and strain the supply of personal protective equipment, both of which could affect the care provided to those not infected with the virus, they said.
“If the pandemic comes back in full force like it was in April, the pressures that come up at nursing homes don’t affect only people with Covid, they affect all the residents that you’re serving,” said Jim Clyne, chief executive of LeadingAge New York, a group that represents nonprofit nursing homes.
Campaign finance records show that since mid-March, the Greater New York Hospital Association has given more than $300,000 to campaign committees controlled by the Democrats — who rule both chambers of the Legislature — and Republicans. That haul includes $150,000 to the New York State Democratic Assembly Democratic Committee and $100,000 to their Senate Democratic counterparts.
Both Senate and Assembly spokesmen noted, however, the hospital association had opposed Mr. Kim’s bill, which is sponsored by Senator Luis Sepulveda in the Senate.
“Contributions do not influence our positions nor will they ever,” said Michael Whyland, a spokesman for the Assembly.
On Wednesday, Mr. Cuomo said he could “see the rationale” for allowing lawsuits on cases that are not Covid-related, but said he wanted to review the entire bill before giving an opinion.
Mr. Kim said he hopes that the Legislature approves a victims compensation fund at some later date for families of nursing home victims, a sentiment shared by Mr. Gottfried, who said he still supports a full repeal of the immunity provision.
But like determinations on what went wrong in the state’s nursing homes, Mr. Gottfried suggested that sometimes a full reckoning on an issue can take time.
“Half a loaf is better than none,” Mr. Gottfried said.