NY Governor’s Office Withheld Data on Deaths of Nursing Homes Patients to Obstruct a Federal Investigation

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As reported in the NY Post, here are the basic facts:

In August the New York State Legislature made a request to the Governor’s Office for data on deaths of patients in nursing homes attributed to COVID-19.

The NY Department of Health collects data in real-time regarding deaths of nursing home patients, and in August 2020 the DOH website showed only 6500 such deaths.  But there was widespread speculation in the media and in the Legislature that this number was not accurate.  Legislation was proposed — but never passed — that would have addressed what was thought to be a hole in the reporting.  The DOH was only recording deaths of nursing homes’ patients who died in the nursing home, but this fact was not clear from the data on the website.

On Thursday it was revealed that a Secretary to the Governor, Melissa De Rosa, apologized to lawmakers in a conference call for purposely withholding the accurate information.  Not included in the data on the DOH website were deaths of nursing homes’ patients who were hospitalized with COVID-19, and died while still in the hospital or some other location like an assisted-living facility. The actual number of nursing homes’ patients who died of COVID-19 is over 15,000.  The 6500 number reflected only nursing homes’ patients who died in their nursing home although the Governor’s Office made it seem like that was the total number of COVID deaths in that segment of the population.

She apologized to DEMOCRAT lawmakers on the call.

Her justification — “Blah blah blah Trump blah blah blah”.

Did I mention she was intending to obstruct a federal Department of Justice investigation?  Someone check Andrew Weissman’s Twitter feed — I’m sure he’s all over this outrage.

From the Post:

[T]he Cuomo administration had rebuffed a legislative request for the tally in August because “right around the same time, [then-President Donald Trump] turns this into a giant political football,” according to an audio recording of the two-hour-plus meeting.

“He starts tweeting that we killed everyone in nursing homes,” DeRosa said. “He starts going after [New Jersey Gov. Phil] Murphy, starts going after [California Gov. Gavin] Newsom, starts going after [Michigan Gov.] Gretchen Whitmer.”

In addition to attacking Cuomo’s fellow Democratic governors, DeRosa said, Trump “directs the Department of Justice to do an investigation into us.”

“And basically, we froze,” she told the lawmakers on the call.

“Because then we were in a position where we weren’t sure if what we were going to give to the Department of Justice, or what we give to you guys, what we start saying, was going to be used against us while we weren’t sure if there was going to be an investigation.”

So, Pres. Trump — allegedly — DIRECTS the DOJ to do an investigation of New York, and because Pres. Trump “turns this into a giant political football”, New York State government officials are justified in issuing misleading to the public, and withhold accurate information from everyone.

“We froze … we weren’t sure if what we were going to give to the Department of Justice, or what we give to you guys [lawmakers] … would be used against us.”

Well, okay then.  Obstruction is the order of the day.  Business as usual in Albany when Democrats have the lens focused on them.  After all, nothing done by the Trump Administration was ever legitimate, right?  Donald Trump, in between mean tweets about liberal governors pushing policies that are killing people, is issuing “pros memos” to DOJ about who to target and why.

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But it’s all just a political football, so a political defense is justified.

Title 42, United States Code Section 1997a is titled “The Civil Rights of Institutionalized Persons Act.”  Yes, Melissa, there is a federal law under federal civil rights statutes that protects institutionalized persons from the gross neglect and misconduct of state officials running those institutions.  The statute reads as follows:

Whenever the Attorney General has reasonable cause to believe that any State or political subdivision of a State, official, employee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities, except that such equitable relief shall be available under this subchapter to persons residing in or confined to an institution as defined in section 1997(1)(B)(ii) of this title only insofar as such persons are subjected to conditions which deprive them of rights, privileges, or immunities secured or protected by the Constitution of the United States.

This is a little statute that is often used by the DOJ to compel states or municipalities to improve the prison and jail facilities for the benefit of incarcerated prisoners.  It has also been used to compel the improvement of state mental hospital facilities for the benefit of institutionalized patients. And it seems that DOJ determined that it was appropriate to take a closer look at why nursing home patients in a handful of states seemed to be dying on a per capita basis in numbers greatly in excess of such deaths in other equally populous states.

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So, for example, if a particular Governor issued an order that COVID-19 positive patients be transferred from hospitals to nursing homes, and other residents of those nursing homes thereafter contracted COVID-19 and died as a result of that order, did the action of that Governor deny those who died “any rights, privileges, or immunities secured or protected to them by the Constitution.”

Like the “right to life” guaranteed by the Fifth and Fourteenth Amendments — as an example.

In fact, the investigation which Pres. Trump supposedly “directed” was actually announced by a DOJ press release on August 26, 2020.

Today the Justice Department requested COVID-19 data from the governors of states that issued orders which may have resulted in the deaths of thousands of elderly nursing home residents. New York, New Jersey, Pennsylvania, and Michigan required nursing homes to admit COVID-19 patients to their vulnerable populations, often without adequate testing.

….all The

“Protecting the rights of some of society’s most vulnerable members, including elderly nursing home residents, is one of our country’s most important obligations,” said Assistant Attorney General for Civil Rights Division Eric Dreiband. “We must ensure they are adequately cared for with dignity and respect and not unnecessarily put at risk.”

According to the Centers for Disease Control, New York has the highest number of COVID-19 deaths in the United States, with 32,592 victims, many of them elderly. New York’s death rate by population is the second highest in the country with 1,680 deaths per million people. New Jersey’s death rate by population is 1,733 deaths per million people – the highest in the nation. In contrast, Texas’s death rate by population is 380 deaths per million people; and Texas has just over 11,000 deaths, though its population is 50 percent larger than New York and has many more recorded cases of COVID-19 – 577,537 cases in Texas versus 430,885 cases in New York. Florida’s COVID-19 death rate is 480 deaths per million; with total deaths of 10,325 and a population slightly larger than New York.

The Department of Justice’s Civil Rights Division is evaluating whether to initiate investigations under the federal “Civil Rights of Institutionalized Persons Act” (CRIPA), which protects the civil rights of persons in state-run nursing homes, among others. The Civil Rights Division seeks to determine if the state orders requiring admission of COVID-19 patients to nursing homes is responsible for the deaths of nursing home residents.

The final paragraph makes clear that the investigation was in the preliminary stage — DOJ was only seeking data.

But DeRosa, and presumably others in the Cuomo Administration, took it upon themselves to actively withhold data – they obstructed DOJ’s request for information by posting incomplete data and then not providing true and accurate material to DOJ.

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So why come clean now?

At first, it seemed likely to me that in the pending COVID-19 relief package there might be some form of monetizing the dead — some form of aid to states based on the number of COVID-19 deaths they have reported.  That would provide a financial incentive for DeRosa’s “confession” — to Democrats only — because the more dead bodies they could count, the greater the aid amount they might receive.

But DeRosa provided the answer herself:

During Wednesday’s conference call, DeRosa said it appeared the DOJ was no longer focused on New York’s nursing home deaths.

“All signs point to they are not looking at this, they’ve dropped it,” she said.

The Biden Justice Department to the rescue.

The bottom line is that when Pres. Trump resisted efforts by New York State officials to investigate him and his businesses, the press was up in arms over him taking legitimate steps through the Court system to curtail the reach of New York State prosecutors.

But here we have a “Grade A” example of New York State officials actively hiding information relevant to a DOJ investigation — “O-B-S-T-R-U-C-T-I-O-N” for the benefit of Mr. Weissmann — and the sentiment seems to be that it was a justified defensive political action for the purpose of protecting the State and State Officials from a legitimate inquiry under a specific federal statute where real United States citizens likely died as a result of state action.

DeRosa’s statements are incriminating.  The Biden DOJ might have taken a pass on Cuomo’s order and the “right to life” of nursing home patients.

Will they take a pass on DeRosa’s obstruction as well?  Imagine what she might have to say before a federal grand jury.

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