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Lawmakers voice concerns at hearing on nursing home policy amid COVID-19 pandemic

This first part of the joint Senate-Assembly public hearings on the state’s COVID-19 response inside nursing homes concluded on Monday, revealing lessons for upstate New York representatives ahead of the next hearing slated for August 10th.

State assembly members and senators were given three to five minutes depending on their ranking status to pose questions directly to the Commissioner of Health Howard Zucker during a virtual public hearing, which started at 10 a.m. on Monday, August 3rd.

The Health, Aging and Investigations committees sponsored the two-part public hearing session.

Zucker, who testified before state lawmakers had been only able to stay for a few hours until near 1 p.m. after taking a leave of absence.

But in that short span of minutes, many representatives from the state Legislature were unable to finish their thoughts or line of questioning to Zucker.

More importantly, however, many did not receive sufficient responses from Zucker, as shown by their piercing glares and visual frustrations while onscreen.

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Senator Gustavo Rivera [D-33] of the Bronx moderated the special public hearing that primarily focused on concerns raised by downstate representatives with an exception of a few, including Senators Pam Helming [R-54] and Tom O’Mara [R-58], who were both appointed by Senate Minority Leader Robert Ortt [R-62] to participate in yesterday’s proceedings as ranking Republicans in their respective committees.

Helming, who had been appointed as the lead Republican for the Health Committee delivered a condensed speech from the comfort of her office room, calling-out Zucker’s response to the pandemic.

RELATED READ: Previewing major public hearings in Albany over COVID-19 response in nursing homes  

Whereas O’Mara, who had been tapped as the top Republican for the Senate’s Committee on Investigations and Government Operations inquired about what alternative care facilities were established outside of New York City, a question that had gone unanswered by Zucker during his allotted five-minutes.

Aside from these representatives, other elected officials pressed Zucker for the duration of the session.

Senator Susan Serino [R-54] from the Hudson Valley region asked if decision for the Department of Health policy from March 25th had been “wholly independent from the executive order,” only seeking for a yes or no answer.

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“We must do this as a collaborative effort,” Zucker expressed while apologizing for not answering in a yes or no format, the one that Serino requested.

In the final moments of her allotted time, she continued push Zucker, asking who made the final call about the March 25th policy.

But Zucker stood by his previous statement, insisting that the decision came from a specific team at the Department of Health.

Similarly, Assemblyman Kevin Byrne [R-94] who’s district encompasses counties throughout Westchester chimed in about the Department of Health report as well.

Byrne considered that the report defended the March 25th mandate set forth by the Department of Health’s office.

But Zucker still strongly supported the report saying, “I stand by all of the information in that report.”

Despite his aforementioned comments, Byrne claimed that the report had good elements but had been deemed “incomplete” and missing some crucial information, including a complete COVID-19 death count.

Assemblyman John T. McDonald III [D-108] from the Albany and Saratoga regions also raised issues with the March 25th policy.

“The nursing homes are their home. This is their home,” Zucker answered back to McDonald, claiming this is where the care occurs.

Eventually, even Rivera had been afforded an opportunity to allow to Zucker to convince him about how the nursing home COVID-19 deaths were counted.

“This is the crux to me,” Rivera explained to Zucker.

He pushed Zucker asking him twice if the COVID-19 death counts were conducted one-way and then differently at a later date – but he still didn’t get a full explanation.

Rivera considered the changing of the definition as a means to minimize the serious issue that has stirred in New York state.

Zucker attempted to deviate from his record in New York, suggesting that other states are not responding the same way, and yet Rivera called-out his deflection.

“Patting us on the back is a bit far-fetched to me… You’re choosing to define it differently to make yourself look better,” Rivera ended his time.

Assemblyman Thomas J. Abinanti [D-92] from Westchester vocally raising his concerns as to why are families being held outside of nursing homes and not allowed in to see their loved-ones.

He considered, “What is the basis for excluding family members?”

Abinanti contended that the families who would visit relatives and friends at nursing homes could be the most cautious and careful when it comes slowing the spread of COVID-19.

Meanwhile, employees at those same facilities are commuting back and forth from work to home and can present the same health care concerns for the reasons why family visitation has been barred statewide.

Posing a challenge to Zucker and his Department of Health, Abinanti insisted on his staff to consider creating a procedure which would allow in-person visitation by testing those who arrive at the nursing homes.

“I’d like to see you set a process as a soon as possible,” Abinanti fiercely reiterated.

Currently, 117 nursing homes already have visitation programs in place, according to Zucker and he still had reservations regarding Abinanti’s passionate request.

“They live in the communities. They work in the communities. I do not want it to spread… I’m trying to balance two things,” Zucker responded.

Additionally, Assemblyman Billy Jones [D-115] who primarily represents Clinton and Franklin counties also aligned with similar sentiments from Abinanti.

Jones asked if the state’s Department of Corrections and Community Supervision are receiving any guidance for the reopening of their visitation plan from the Department of Health, but Zucker was unable to answer his question.

“They feel like the forgotten ones,” Jones considered those who live inside nursing homes, as if they are being punished.

The defining line in the sand for Jones rested in the fact that if DOCCS can reopen soon, the state should also be able to allow residents to renter nursing homes as well.

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On a separate note, Senator Alessandra Biaggi [D-34] grilled Zucker while on-call about the hospital and nursing home immunity issue, which in her opinion caused residents in her communities and across New York to “retroactively lose their rights.”

When pressed by Biaggi, Zucker admitted that he did not read a specific provision that appeared in this year’s 2020-2021 state budget, allowing for nursing homes and hospitals to have immunity for all forms of treatment – COVID-19 related or not.

Although Zucker did not read that provision, he fired back noting that she’s complicit in that decision ultimately passing by negotiating the budget among her colleagues in the Legislature.

Assemblyman Harry B. Bronson [D-138] who represents parts of the city of Rochester and Henrietta noted that the state’s Long Term Care Ombudsman Program’s operations had been put on hold amid the ongoing pandemic.

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Bronson asked how many inspections the Department of Health have conducted in nursing homes since the start of pandemic and Zucker answered back with 1,300 inspections, many of which were multiple visits to the same facilities.

Among the 1,300 inspections, Bronson inquired for the breakdown of facilities where “substantial measures to correct their procedures” were taken, whether that encompasses staffing increases or access to more personal protection equipment.

Zucker could not offer a specific number at that time, promising to provide one to Bronson at a later date.

Zucker also admitted that the Attorney General’s office has also been conducting their own separate investigations, which may be criminal in nature.

Editor’s Note: On Wednesday, July 22nd had been contacted by an investigator from the New York State Attorney General’s office, who sought to speak with sources from the stories that were a part of the investigative series into Elm Manor Nursing and Rehabilitation Center. We have reached out to the Attorney General’s Office, but have not yet received a response.