New York Gov. Andrew Cuomo. AP Photo

Democrats in the state Senate refused earlier this week to issue a subpoena to the New York State Department of Health for the nursing home data and related communications.

Now, Rep. Tom Reed, R-Corning, and members of the state’s Republican Congressional Delegation are taking their request to the U.S. Attorney General’s office. Reed and his fellow Republicans sent a letter Wednesday to Monty Wilkinson, acting U.S. attorney general, asking the U.S. Department of Justice to issue subpoenas for Gov. Andrew Cuomo, the secretary to the governor, state Health Commissioner Dr. Howard Zucker and their staff for all documentation and communications related to the state’s nursing home policies during the COVID-19 pandemic.

“Thousands of New York families who lost a parent or grandparent due to New York’s disastrous nursing home policies deserve nothing less than full transparency and accountability,” Reed said. “If the Biden administration and their Department of Justice are truly committed to following the spirit of independence and impartiality, they should join with us as we work to further uncover the depths of Governor Cuomo and New York state’s incompetence. It is the only remedy to ensuring such horrific public health mistakes never happens again.”

Earlier this week, Senator Tom O’Mara, R-Elmira and ranking member of the Senate Committee on Investigations and Government Operations, advanced a motion calling on the committee to issue a subpoena to the state Department of Health for the nursing home data and related communications.

“It is time for the Senate Democrat Majority to stop stonewalling and protecting Governor Cuomo on the nursing homes crisis. In the wake of the attorney general’s report, the failure of the Investigations Committee to immediately issue subpoenas and demand testimony from Governor Cuomo and his administration once again completely abandons legislative responsibility. It makes the Senate Democrats complicit in this tragedy. Every step of the way, the Senate Democrat Majority has been willing to give the Cuomo administration every opportunity to keep trying to cover its tracks and rewrite its false story on nursing homes,” O’Mara said.

Sen. James Skoufis, D-Newburgh and chair of the Committee on Investigations, dismissed the request. Skoufis referred to earlier statements saying he would consider subpoenas if Zucker did not provide information about nursing homes deaths by the time he testified before joint legislative budget committees. Skoufis said Letitia James, state attorney general, and Zucker had provided enough numbers to give legislators a good sense of the issue. Skoufis said he preferred to see what numbers Zucker released between the committee hearing and the Feb. 25 budget hearing.

“That is what you and your colleagues and many of us have been screaming and looking for for many months,” Skoufis said. “Now it seems to be, ‘Alright, he’s forthright with the numbers, but we’ve got an agenda so let’s move forward with subpoenas. That is not how this committee operates. I do not operate and this committee does not operate in a political manner. We put subpoenas on the table to get the full nursing home numbers. Most of that information has now been handed over in light of the pressure, I believe, that many of us and the Attorney General’s report put on the Department of Health.”

In addition to dismissing the call for subpoenas as politically motivated, Skoufis said Senate Republicans hadn’t used subpoena power when they had control of the state Senate while Senate Democrats have advanced and issued 25 subpoenas in two years.

“As far as I can tell, and we did some research quite a while ago on this,the last 10 years of Republican majority rule produced one single subpoena in 10 years,” Skoufis said. “And that one subpoena was actually withdrawn having to do with the Hoosick Falls contamination situation. … With all due respect, Sen. O’Mara, I am not going to be lectured or bullied into issuing subpoenas. … Respectfully, subpoenas are very much on the table but this is a political motion. This committee is not going to be bullied something when we have laid out what we believe the roadmap is to getting this information.”

Sen. George Borrello, R-Sunset Bay, also criticized the dismissal of O’Mara’s motion in part because Cuomo has, in Borrello’s view, given mixed messages about the state’s handling of nursing homes during COVID-19.

“This nursing home crisis has escalated beyond the point where Senate Democrats’ can use politics as a roadblock. They have a duty to their constituents and all New Yorkers to help lead the effort to uncover the truth,” Borrello said. “The governor has contradicted himself. While he claimed it doesn’t matter where people died, he used his misleading data to promote his handling of the crisis. He boasted back in October that the state ranked 46th out of 50 states in the number of nursing home deaths. So, it did matter to him when he shifted the data to serve his narrative. However, more importantly, it matters greatly to every family that lost a loved one and whose questions and voices have been ignored by this administration. We have a responsibility – to them – to get to the truth.”

COURT RULING ORDERS DATA RELEASE

Also on Wednesday, state Supreme Court Justice Kimberly O’Connor issued a ruling requiring the state Health Department to provide records requested by the Empire Center for Public Policy within five business days and to compensate the Empire Center and its legal counsel for litigation expenses. The Empire Center requested the records under the Freedom of Information Law on Aug. 3. The Health Department had postponed responding three times, mostly recently until March 22-a delay of more than seven months.

“DOH does not, in the Court’s opinion, offer an adequate explanation as to why it has not responded to that request within its estimated time period or to date… The Court is not persuaded that the respondent’s estimated date for responding to Empire Center’s FOIL request is reasonable under the circumstances of the request,” O’Connor wrote in her decision.

Last week, in response to a critical report on nursing homes from the state attorney general’s office, Health Commissioner Howard Zucker revealed that almost 4,000 nursing home residents had succumbed to COVID-19 in hospitals, boosting the total nursing home toll to almost 13,000.

That one-day total represents a tiny fraction of the data the Department is now obliged to release, which would include the number of deaths in each facility on each day since the start of the pandemic.