Monday’s public hearing on the COVID-19 crisis in upstate New York nursing homes will likely feature talk about reforming visitation policies and a lack of personal protective equipment, but don’t expect to hear from who some consider the state’s most important nursing home witness, state Health Commissioner Dr. Howard Zucker.
Following last week’s hearing on downstate nursing homes, the New York State Legislature’s second and for-now final virtual hearing, set for 10 a.m., will look at upstate nursing homes and include testimony from upstate nursing home operators, employees and families.
Upstate has accounted for less than a third of the state’s approximately 6,400 recorded nursing home COVID-19 deaths. State Sen. Rachel May, chair of the Senate Committee on Aging, said this may cause Monday’s hearing to focus less on deaths, and more on things like shortages of PPE and heightened outbreaks at individual facilities.
“Upstate had a different experience — the pandemic wasn't about bodies mounting up. It was about facilities working with very limited resources and trying to manage outbreaks here and there,” said May, D-Syracuse.
Assemblymember Harry Bronson, chair of the Assembly Committee on Aging, said lawmakers also hope to address the slow reopening of nursing homes for visitation. In particular, how to give more access to family caregivers, who often help nursing home residents eat and go to the bathroom.
“Is there a way to balance it so that those family members can visit their loved ones in a safe and healthy way, and that those loved ones can continue to provide the emotional support that's necessary and oftentimes provide additional caregiving?” said Bronson, D-Rochester.
However, the hearing is unlikely to feature Zucker, whose state Department of Health regulates New York’s 613 nursing homes.
May told WBFO on Friday that Zucker declined lawmakers’ invitation to testify; a spokesperson for the state Department of Health did not return a request for comment.
“A lot of people are unhappy about that,” she said. “But we are going to follow up in writing and try to get answers to some of the questions that he didn't answer last week.”
Zucker’s testimony at last week’s hearing disappointed lawmakers. He refused to disclose how many nursing home residents died of COVID-19 at hospitals, saying he would not release the data until he had verified it.
New York state’s official nursing home COVID-19 death tally of 6,400 only includes nursing residents who died in their nursing homes. It does not include residents who died after being taken to a hospital. Some estimate the state’s true nursing home death toll could be closer to 11,000.
Without the complete death data, some feel it’s impossible to know the true impact of Gov. Andrew Cuomo’s controversial March 25 executive order that placed COVID-positive hospital patients into nursing homes. Zucker released a report July 6 that found that Cuomo’s order could not have been the “driver” of nursing home infections and deaths, but the report used the incomplete death data.
Republican lawmakers want the Democrat-controlled state Senate to subpoena Zucker and other Cuomo administration officials for the data.
“I find it hard to believe that the state Department of Health doesn't have a better picture than they are providing to us,” said state Senate Minority Leader Robert Ortt, R-North Tonawanda. “The majority has to decide: Is this really about providing oversight and getting answers, or is this just a ‘check the box, we did hearings and let's move on?’”
Democrats aren’t ready to subpoena Zucker yet. Bronson and May, both Democrats, said they’re frustrated too, but that they have to work with the Department of Health, not against it.
“We need to have a relationship with the executive (branch). So you want to use that extremely carefully,” May said, adding that Republicans controlled the state Senate for many years and never used the Senate’s subpoena power on the executive branch either.
May added that she hopes Monday’s hearing can also address topics like racial disparities in nursing homes, as well as the pandemic’s impact on rural nursing homes.
“Our rural health care facilities are working on a razor thin margin. They were before, they were barely holding on, and I worry that some of the fallout from the pandemic is going to be that they're going to be in worse shape than they were before,” she said.
However, Ortt said the hearings will be for naught if they don't result in “real” answers from Zucker.
“And it's just up to us how we're going to decide to get it,” he said. “Are we going to ask nicely? Are we going to make them provide it? Or are we just going to walk away again? And I think that'll tell people a lot about what these hearings are. Are they just theater? Are they just saying we did a hearing so we did a hearing? Or is this really about trying to get to the bottom of what happened and how we go forward to make sure it doesn't happen again?”