Brendan J. Lyons
Times Union, Albany, N.Y.
Feb. 18—ALBANY — The FBI and the U.S. attorney’s office in Brooklyn have launched an investigation that is examining, at least in part, the actions of Gov. Andrew M. Cuomo’s coronavirus task force in its handling of nursing homes and other long-term care facilities during the pandemic, the Times Union has learned.
The probe by the U.S. attorney’s office in the Eastern District of New York is apparently in its early stages and is focusing on the work of some of the senior members of the governor’s task force, according to a person with direct knowledge of the matter who is not authorized to comment publicly.
Last March, as the virus began spreading in New York, Cuomo issued a news release listing the 13 initial members of his coronavirus task force, which has been headed by Linda Lacewell, an attorney and former chief of staff for Cuomo. Lacewell is the superintendent of the state Department of Financial Services. Other task force members include state health Commissioner Howard Zucker, Secretary to the Governor Melissa DeRosa and Beth Garvey, counsel to the governor.
“As we publicly said, DOJ (Department of Justice) has been looking into this for months,” said Richard Azzopardi, a spokesman for the governor. “We have been cooperating with them and we will continue to.”
Azzopardi did not disclose whether any members of the administration have been interviewed or if they have been served with any subpoenas.
John Marzulli, a spokesman for the U.S. attorney’s office in Brooklyn, on Wednesday afternoon said he could not “confirm or deny” whether the office has initiated an investigation.
Nearly three weeks after the governor’s task force was announced last year, the state health department issued an order directing nursing homes and other long-term care facilities that they must accept residents who were being discharged from hospitals even if they were still testing positive for the infectious disease, as long as they were able to care for them properly.
That directive, which was rescinded less than two months later, has been the focus of a firestorm of criticism directed at Cuomo’s administration, including allegations that the order — which the governor said was based on federal guidance — had contributed to the high number of fatalities of nursing home residents in New York. That assertion was largely dismissed in a report by the Department of Health that was released in July.
Last month, the office of Attorney General Letitia James issued a scathing report that concluded the practice may have increased the risk of COVID-19 infections at the congregate facilities and that Cuomo’s administration had delayed reporting that thousands of additional nursing home residents died at hospitals after being infected in their residential facilities.
It’s unclear whether the federal probe by the office of acting U.S. Attorney Seth D. DuCharme is tied to two letters that Cuomo’s administration received from a civil division attorney at the Justice Department in Washington, D.C., last year seeking information on the state’s nursing home policies and data.
The controversy boiled over again last week when DeRosa, in a closed-door meeting with key Democrats in the state Legislature with the authority to subpoena and investigate the governor’s administration, told the group that the administration had withheld information lawmakers had requested on nursing homes for months due to the Justice Department’s inquiry.
DeRosa, in the private meeting that was the subject of a subsequent leak, characterized the Justice Department official who sent the letter, Jeffrey Clark, an attorney who headed the department’s civil division, as a “political hack” that she contended had pursued the probe at the urging of President Donald J. Trump.
“Basically, we froze 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 and what we start saying was going to be used against us and we weren’t sure if there was going to be an investigation,” DeRosa told the Democratic lawmakers.
In a formal statement a day after her remarks were leaked, DeRosa said the administration has cooperated fully with the Department of Justice.
The recent probe by the U.S. attorney’s office in Brooklyn is not the first time that New York City-based federal prosecutors have launched investigations in New York’s Northern District, which stretches from Kingston to the Canadian border with headquarters in Albany and Syracuse. A sprawling fraud and bribery case involving top Cuomo aides in Albany was prosecuted by the U.S. attorney’s office in Manhattan; the prosecution of NXIVM co-founder Keith Raniere and other top members of his organization was handled by the U.S. attorney’s office in Brooklyn.
Sen. Chuck Grassley, R-Iowa, issued a statement Wednesday urging President Joe Biden to allow Antoinette Bacon, the acting U.S. attorney in New York’s Northern District, to be assigned to investigate Cuomo’s administration in connection with its reporting of nursing home fatalities.
Grassley noted that the U.S. attorney in New York’s Manhattan-based Southern District, Audrey Strauss, is the mother-in-law of DeRosa and should not be involved in any probe.
Bacon, who was appointed acting U.S. attorney in Albany in September, is among dozens of U.S. attorneys who may be removed from their positions by the Biden administration. Bacon had recently been the Justice Department’s national elder-justice coordinator and served as the national white collar crime coordinator at the executive office for U.S. attorneys.
She is a highly decorated prosecutor and has received special awards from the IRS, U.S. Postal Service and the Justice Department “for her prosecutions of fraud, waste, abuse, and corruption,” according to her professional biography.
But the probe being conducted by the U.S. attorney’s office in Brooklyn apparently does not involve the Northern District.
Earlier this week, Cuomo stopped short of apologizing for his administration’s handling of nursing homes’ fatality data, repeatedly noting they had created a “void” by not providing the information requested by state lawmakers.
“Apologize? Look, I have said repeatedly, we made a mistake in creating the void,” he said. “When we didn’t provide information it allowed press, people, cynics, politicians to fill the void. When you don’t correct this information you allow it to continue and we created the void.”
Republicans at all levels of New York’s government spectrum, and many Democrats as well, have repeatedly called for independent investigations of the state’s nursing home policies and directives during the ongoing pandemic. Some of those critics also have raised questions about whether there were any ties between policy decisions and hospitals or other special interests that either have business before the state or are subject to its regulating agencies.
State lawmakers also have pressed for the use of legislative subpoenas to compel answers from key officials, including Zucker.
The lawmakers who attended the briefing with DeRosa included Assemblyman John McDonald, D-Cohoes, chair of the Assembly’s Oversight, Analysis and Investigations Committee, and Sen. James Skoufis, an Orange County Democrat who chairs the Senate’s Investigations and Government Operations Committee. Skoufis and Aging Committee Chairwoman Rachel May, who were both in the meeting, have faced calls from Republicans for their chairmanships to be stripped by Senate Majority Leader Andrea Stewart-Cousins because they did not alert their legislative colleagues to what had been said.
Skoufis had already come under fire by Republican lawmakers for not immediately issuing subpoenas for the information they had asked the health commissioner for last summer. Skoufis has said he would use the power if necessary, but would decide that issue after Zucker appears before the Legislature’s joint budget hearing panel.
In a statement following last week’s meeting with DeRosa, Skoufis did not mention her remarks about the administration’s decision to withhold the data in the face of the Justice Department’s civil division inquiry. He said it was “unacceptable that it took so long.”
“To be clear, we will certainly have more questions as we review this information,” Skoufis said of the data that was turned over to state lawmakers last week. “While some of our Republican colleagues in the Legislature continue to shamefully play politics with the tragedy that unfolded in our state’s nursing homes, we are, instead, committed to getting answers, holding stakeholders accountable, and advancing legislative solutions in a sober, thoughtful manner.”
Cuomo this week said he does not believe there should be an outside investigation of his administration’s handling of nursing homes during the pandemic or its delay in reporting the number of fatalities.
“The New York state (Department of Health) has always fully and publicly reported all COVID deaths in nursing homes and hospitals. They have always been fully reported,” Cuomo said Monday. “I don’t think there’s anything to clear here. … There is nothing to investigate.”
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