Why did Governor Cuomo give nursing homes immunity from Covid deaths?

Was the corporate immunity linked to $1.5m in political contributions from lobbyists? Only a full investigation can help us find out

‘There is more than a good chance that he continued to listen to lobbyists after the budget – and the immunity clause – passed.’
‘There is more than a good chance that he continued to listen to lobbyists after the budget – and the immunity clause – passed.’ Photograph: Johannes Eisele/AFP/Getty Images
‘There is more than a good chance that he continued to listen to lobbyists after the budget – and the immunity clause – passed.’ Photograph: Johannes Eisele/AFP/Getty Images
Tue 23 Feb 2021 06.20 EST

Imagine fielding hundreds of calls from worried constituents at the peak of the first Covid-19 wave, trying to help scared families protect loved ones in nursing homes.

Imagine being stonewalled by those nursing homes and the department of health as you sought answers to life-and-death questions, knowing that Governor Andrew Cuomo’s directive forced these unprepared facilities to take in thousands of Covid-positive patients.

This was what I was going through as a New York state assemblyman when I received a call from a New York Times reporter about a corporate legal immunity provision that gave for-profit nursing homes and hospitals get-out-of-jail-free cards.

My heart sank as I read it. I did not need a PhD or law degree to understand the repercussions of handing out legal immunity to for-profit nursing homes, which now had legal and criminal shields to disincentivize them from saving lives.

Many of my colleagues had no idea the 2020 budget contained a legal shield that gave nursing home executives, trustees and board members blanket immunity. I voted against the budget bill, but if more members knew about the full implications of the legal immunity clause, there was no chance it would have passed.

So how and why did a blanket corporate immunity clause end up in the state budget?

In Albany and state capitals across the country, powerful governors routinely sneak toxic, corporate-friendly provisions into annual budget bills, hoping that lawmakers and the public are not paying attention. These are laws – like corporate legal immunity – that would never pass as stand-alone legislation.

The bigger question is why this provision was added in.

During the peak of the first wave, the Greater New York Hospital Association (GNYHA), a lobbying arm of hospitals and nursing home facilities, drafted immunity legislation and sent it to the governor’s office. On 3 April, they bragged in a post on its website (later taken down) that they had drafted and passed the “gold standard” of legal immunity for their members in New York’s 2020 budget.

At the time, New York’s nursing home fatalities were among the highest in the nation. As my office began investigating, what became certain was a clear connection between early blanket corporate immunity and higher rates of fatalities at nursing homes.

I felt as if I had to make this public: we believed in our data, compiled three reports and drafted a bill to fully repeal the corporate immunity law.

However, shortly after our reports were published, the governor’s administration changed how fatalities were being counted. Nursing home residents who died in hospitals were now attributed to the hospitals and not the nursing homes. As a result, New York’s nursing home deaths “decreased” and no longer seemed as awful compared with other states.

In August, at a joint oversight hearing, the president of GNYHA admitted they “lobbied extensively for the immunity law”, and that he was “proud to have done it and continue to do it right now in Washington as it relates to the federal level”.

There is a strong link between Governor Cuomo’s push for legal immunity and lobbyists like the Greater New York Hospital Association, which in one year gave him more than $1.5m in political contributions. There is more than a good chance that he continued to listen to these lobbyists after the budget – and the immunity clause – passed.

And there is a real possibility that lobbyists for hospital executives and for-profit nursing homes pushed the administration to suppress death numbers to defend their legal immunity.

Despite many pleas to disclose the full data, the governor and his administration purposefully suppressed this information until very recently, when the New York state attorney general reported an almost 50% underreporting in nursing home deaths.

For these reasons, we must thoroughly investigate why Governor Cuomo gave these for-profit facilities legal immunity, and who influenced him to suppress the nursing home death numbers.

  • Ron Kim is in the New York state assembly representing the 40th district