Andrew Cuomo’s Covid-19 nursing home fiasco shows the ethical perils of pandemic policymaking

WASHINGTON — The humbling of New York Gov. Andrew Cuomo on pandemic policy has been spectacular and swift. Within a matter of days, one of America’s most trusted voices in the early days of the Covid-19 pandemic became a political pariah.

Outrage over Cuomo’s decisions — first, to require nursing homes to accept Covid-19-positive patients when New York’s hospitals were overflowing, and then, to hide data about deaths of nursing home residents — has engulfed Albany in recent weeks. Court orders, leaks, and investigations revealed that Cuomo dramatically and intentionally understated the pandemic’s toll on nursing home residents in New York.

Cuomo’s fall from grace is a cautionary tale of the perils of policymaking during a public health crisis. Making the right decisions in the early days of battling a novel virus is incredibly difficult, and leaders shouldn’t fear retribution for tough choices they made in good faith, five ethicists and public health experts told STAT. But that doesn’t absolve leaders from taking responsibility for their missteps.

“You’re asking for the public to entrust you with executive power during this time, when you don’t have all the information yet. You have to assure the public that you are using that information to adapt accordingly. If you don’t do that, the public wouldn’t be able to trust you,” said Anita Ho, an associate professor of bioethics at the University of California, San Francisco.

The ethicists said that Cuomo’s conduct stands out not because the policy he put in place was especially egregious, but because he obscured public health data for political gain.

Cuomo wasn’t alone in prohibiting nursing homes from discriminating against patients based on their Covid-19 infection status — officials in other states with similar nursing home policies faced criticism, but managed to avoid career-threatening blowback.

Hospitals were truly overwhelmed, and data has shown the nursing home transfer policies were not the sole or primary drivers of Covid-19 nursing home deaths. The number of deaths that may have been caused by the policies remains unclear.

But then Cuomo hid the data.

“Cuomo got such positive press as someone who was a straight shooter, particularly in contrast to somebody like President Trump. … Lying about the nursing home data is antithetical to that, and caused a real problem,” said Michael Gusmano, a professor of health policy at Rutgers University.

Cuomo’s office did not respond to questions about his administration’s nursing home data reporting.

Cuomo’s first missteps came in March. New York City hospitals were overwhelmed, and New York’s influential hospital lobby was pleading with Cuomo to issue policy on transfers to nursing homes. Greater New York Hospital Association spokesperson Brian Conway said hospitals made the request because Cuomo had ordered hospitals to immediately increase bed capacity by at least 50%.

Cuomo on March 25 issued the controversial directive that told nursing homes they couldn’t deny patients coming from hospitals admission based on a Covid-19 diagnosis.

Evaluating the ethics of that directive is a little more complicated than evaluating your average executive order. In the midst of a crisis, public health ethicists said, policymakers don’t have the luxury of time to do typical outreach and data analysis, but they do have a responsibility to be as thorough as they can.

Carmel Shachar, the executive director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, said it was ultimately Cuomo’s responsibility to ensure his staff was analyzing potential consequences.

It’s not clear he did. Cuomo and his team didn’t talk to some relevant nursing home stakeholders before they made the policy, and were perhaps overly reliant on the politically powerful hospital industry. LeadingAge New York President and CEO Jim Clyne, who represents nonprofit nursing homes in New York, said he didn’t hear about the policy until after it was released. The national lobby representing nursing homes called the policy a “mistake” that could cause more hospitalizations.

The policy seemed to be overly “hospital-centric” because the experts called upon to shape the policy were primarily in the hospital sector, said Jim Lytle, senior counsel at Manatt, Phelps and Phillips. Cuomo has expressed open distrust toward scientific experts, and instead has preferred to work with the health care industry.

“I don’t think it was meant to be harmful, but I don’t think it was well-intended,” said Richard Mollot, executive director of the New York-based Long Term Care Community Coalition. “I think it was an utter lack of regard for nursing home residents.”

The governor days later put a provision in the state budget that curbed patients’ ability to sue nursing homes and hospitals. Both hospitals and nursing homes had advocated for it.

Cuomo’s team also proceeded despite early compelling evidence that nursing home residents were especially vulnerable to Covid-19. The first known cluster of Covid-19 cases in the United States happened in a Washington nursing home. Media reports featuring public health experts warning of nursing home residents’ vulnerability emerged in early March, well before Cuomo’s directive.

As criticism mounted, Cuomo effectively rescinded the nursing home transfer policy on May 10.

The second, and more ethically problematic decision, was the call to hide data about how many nursing home residents died in nursing homes, and how many Covid-19 patients were transferred from hospitals to nursing homes.

The Cuomo administration managed to keep much of that data under wraps until late January, when the dam broke. The Democratic state attorney general published a bombshell accusation that the administration undercounted nursing home deaths by more than 50%. Data obtained by the Associated Press showed more than 9,000 recovering Covid-19 patients were transferred from nursing homes to hospitals, which was 40% higher than the previously disclosed number.

Then, earlier this month, the New York Post published an explosive report based on leaked footage of one of Cuomo’s top aides claiming the administration hid data on nursing home deaths to avoid political retribution from Trump.

The revelations shed unflattering light on Cuomo’s decision to cherry-pick data and stonewall the advocates and journalists who had been seeking transparency for months.

Cuomo had repeatedly boasted about an apples-to-oranges comparison of New York’s nursing home deaths compared to other states.

Another talking point was a July report from the New York State Department of Health that defended the transfer policy based on incomplete numbers.

The Cuomo administration even trotted out “independent reviewers” to bolster the report. Three of the four were hospital executives and a hospital lobbyist who advocated for the policy. One reviewer, Michael Dowling, the president and CEO of Northwell Health, also wrote a book about the pandemic that has an endorsement from Cuomo splashed across the cover.

Using the incomplete numbers, the report found that the primary driver of Covid-19 in nursing homes was asymptomatic spread by staff, which other analyses have confirmed. The virus was present in many nursing homes before the transfer policy was enacted. But the health department also argued that the analysis showed admission policies were “not a significant factor in nursing home fatalities,” and has maintained that stance after new data was revealed.

New York Attorney General Letitia James said it’s not clear if that’s true.

In January, she countered the health department’s declaration of innocence, saying more analysis is necessary but the transfers “may have contributed to increased risk of nursing home resident infection, and subsequent fatalities.”

The Albany-based Empire Center for Public Policy — which sued the Cuomo administration for nursing home death data and won — also analyzed the new numbers. The group argues that there was a statistically significant increase in resident deaths in nursing homes that accepted hospital transfers. The analysis shows that the effect was more pronounced upstate, where Covid-19 was less prevalent in communities at the time of the March directive.

Cuomo may have had reason to be concerned about the data being politicized by the Trump administration. Trump’s Justice Department requested nursing home data from four Democratic governors in August, and expanded its inquiry a week before the presidential election. In September, Trump blamed management of the pandemic in “blue states” for the high Covid-19 death toll in the United States. During the last presidential debate, Trump mentioned statistics on nursing home deaths in New York to argue the state had poorly handled the pandemic.

The ultimate ethics test for Cuomo’s actions should be whether his decision to withhold data was based on the public interest, or his personal interest, said John Pelissero, a senior scholar at the Markkula Center for Applied Ethics at Santa Clara University.

“What appears to have come out is that the Cuomo administration made a politically expedient decision,” Pelissero said. “In doing so, for what appears to be political reasons, they failed to serve the public interest.”

Cuomo on Feb. 15 expressed regret for not releasing more data sooner, but still has stood by the transfer policy.

It remains unclear what level of accountability Cuomo will face. The FBI and federal prosecutors opened an investigation into his administration’s handling of the data. Rep. Alexandria Ocasio-Cortez (D-N.Y.) has called for an investigation, but spokespeople for Sens. Chuck Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.) did not respond to STAT inquiries on the issue.

Even if Cuomo dodges criminal or civil liability, he will still face political accountability at the hands of voters.

Gusmano, the Rutgers professor, said he understood the governor’s political concerns that Trump may have weaponized the nursing home data to harm New York, but they don’t excuse the governor’s clear effort to mislead the public and state lawmakers.

“What they are learning now, is that they would have been better off admitting the consequences of this decision,” Gusmano said.