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Brian Lehrer: Brian Lehrer on WNYC. We'll talk next about all things Albany including the interaction now of the Cuomo scandals and investigations with really big policy decisions that need to be made by April 1st the start of the state's new fiscal year about tax hikes and marijuana legalization and nursing home reform and other big things.

My guest this time is someone who has played a major role in revealing the nursing home aspects of the Cuomo scandals, Bill Hammond, senior fellow for health policy at the Empire Center a conservative think tank based in Albany. He also refers to himself on Twitter as a recovering journalist. He was a member of the daily news editorial board from 2005 to 2015 and a writer for the conservative New York Sun. The Schenectady Gazette and The Post-Star of Glens Falls before that. Bill thanks for joining us today. Welcome back to WNYC.

Bill Hammond: Good morning Brian. It's a pleasure to talk with you.

Brian: Now, first you have to say what you mean by recovering journalists. I was looking back at some of your past appearances on this show and I can go back to 2007 when you were on as a daily news columnist along with Joyce Pernick then a Metro columnist for the New York Times, talking about governor Eliot Spitzers tense relationship with the state legislature.

You were on in 2004 when you were with the New York Sun discussing good government reforms proposed by Scott Stringer when he was in the assembly and the governor was George Pataki. You've got a lot of recovering to do, Bill. Can you elaborate on being a recovering journalist and now think tank fellow, even if that was just the laugh line on your Twitter bio?

Bill: I was a journalist for a lot of my career. Now I work in a somewhat different role, but I feel like I still get to scratch that same itch, as a think tank guy and a blogger. I still get to look for stories and write about what's going on. I do it more by looking at data now instead of talking to people.

Then, in some ways, I feel like that's an advantage because data can be deceptive, but it doesn't actually try to fool you. It's up to you to figure out what the data say instead of depending on your level of trust with a particular source or politician.

Brian: That's a really interesting comparison. You're the rare fellow at a conservative think tank who I saw get praised on WBAI recently, on the Max and Murphy Show praise because your quest for nursing home death data finally drove the state to come clean on that matter. Would you tell our listeners who haven't followed your work or maybe even followed this aspect of the Cuomo story very closely about your freedom of information requests, a tactic you learned as a journalist I'll point out, and what you uncovered for the public to see?

Bill: Going back to pretty much the beginning of the pandemic there was a lot of back and forth about how the state was counting deaths in nursing homes. They changed their methodology a couple of times. At some point, it became clear that they were omitting a group of people who-- They were nursing home residents, but they died somewhere else most often in hospitals.

There was a lot of interest in finding out how many of those people there were because the idea was to get us the full picture of how many people were losing their lives to this virus. In August there was a public hearing where the commissioner was asked about it and he didn't give straight answers. At that point, I filed a freedom of information request. I don't think I was the first one, I certainly wasn't the only one, but I had the advantage of working for an organization that has a mission of promoting transparency and has resources to back up that mission.

We also had a relationship with another group called the Government Justice Center, which does legal work in this area. I was prepared when the time came to go to court to enforce the freedom of information law which was necessary, unfortunately, in this case. I actually had expected that the state would eventually voluntarily put out this data. It seems so obvious that it was a public record and that the public deserve to have this information but the Cuomo administration continued to hold it back. In addition to withholding information, they were saying misleading things about the situation in New York's nursing homes. Our litigation began in September.

We didn't get a ruling until February, but when we did get that ruling it was 100% on our side. The judge in the case Kimberly O'Connor said that the health department had been violating the freedom of information law. They didn't have a valid reason for withholding the data. She gave them five business days to produce it and she ordered them to pay our court costs.

That was the moment February 3rd. Then, when they actually produce the data on February 10th, that was the moment when the state finally came clean on not just how many people had died, but where they had died and when they had died in a more complete way.

Brian: Cuomo responded to that by saying, "Who cares if they died in nursing homes or in hospitals? They died." What's your response to that?

Bill: The important thing to know, when you're tracking a pandemic, it may be interesting to know where they were when they died, but it seems to me much more important information is where they got the virus, where they were when they got the virus. With nursing home residents, in particular, you can be pretty specific about that. They don't move around a lot, they don't go to the movies, they don't go to restaurants, they don't engage in a lot of social activity outside of the physical structure of the nursing home.

They're surrounded by medical professionals who are theoretically trained in how to control infections. When somebody gets sick in a nursing home it becomes a matter of public concern. It automatically and especially when there's a pandemic and when not just dozens and not just hundreds, but thousands of nursing home residents are getting sick and dying from this virus, that becomes a pretty urgent matter of public concern.

If you're arbitrarily excluding a share of those people because they happen to be sick enough that they went to the hospital before they died. I think that's a real disservice to the public.

Brian: I imagine that you think the governor by listing people from nursing homes who then died of COVID in a hospital, that by emphasizing where they died instead of where they got COVID that he was trying to distract from the criticism of his policy from last March through last May of transferring recovering nursing home patients from the hospital back to their nursing homes. Is that what you think was going on because that policy was being criticized that he was trying to cover up the numbers?

Bill: Normally I'm hesitant to get into somebody's head and think about their motivations, but he's been pretty clear about that all along. That his behavior has made it plain that he feels very sensitive about the criticism of that policy. He's portrayed it as being a political attack, when in fact it was mostly coming from reporters and family members who just wanted to know what the truth was.

If he had simply said, "We're having trouble gathering this information." That would have been bad enough, but in addition to not providing records that they clearly had, he and his health commissioner went around saying we are 46 in the country in terms of the percentage of nursing home deaths, which was a made-up statistic. It was based on a false count of the deaths in New York's nursing home.

It wasn't a proper comparison with the rest of the country and yet he said that over and over and over again. He had to know it wasn't true, but he continued saying it at the same time that he was defying the freedom of information law in terms of providing the correct numbers.

Brian: Yet on the original policy that has started this whole cascade of troubles for the governor, the worst that you could say to Max and Murphy about the governor's policy of transferring recovering COVID patients from hospitals back to their nursing homes, was that it may have cost some lives, you think it probably did. How much of a scandal is it the "original sin" in this story, if Cuomo was making a tough choice among no good choices in March of last year? March of last year we know it was going on, to free up hospital beds for the wave of new patients that was expected and send people back to where they were living when they were getting better.

Bill: You're putting your finger on something a bit of a mystery here which is the coverup seems so disproportionate to the thing that they're covering up. I don't want to downplay the idea that what my research and my colleague and I, Ian Kingsbury, did the statistical analysis of the data which we only recently obtained through the foil request. We found a statistical correlation between the policy, between the COVID positive patients who are transferred into nursing homes, and higher mortality rates in those nursing homes.

Then we estimated that the policy was associated with hundreds and maybe over a thousand additional deaths in those nursing homes. That's a lot of people who died, but to be fair it's a fraction of the total picture of about 15,000 nursing home residents. I don't want to downplay the idea that this policy caused harm. I think what you just said is it was a decision that was made under immense pressure, under plausible fear that the hospitals were going to be completely overwhelmed.

That could have been the governor's explanation for what happened. He could have said, "Look, I made this decision under pressure. I think under the same circumstances I would probably do it again. I didn't fully understand the implications. I've since learned that it contributed to a bad situation in nursing homes." He could have said those things. Instead, he tried to pretend that it didn't happen.

He tried to pretend that actually, no, the nursing home was where the safest in the country or close to it. I can't fully explain why he would go so hard in the direction of being misleading and covering things up instead of trying to be honest and explaining what he did.

Brian: Control freak?

Bill: That may be it. There may be something that we don't know. That's a thought in the back of my mind is that there's something worse that we haven't found out. I think it's worth it to look at the circumstances of when he issued the order. It's true that there was a lot of pressure on him and that he had these credible projections that the hospitals were about to be overwhelmed.

It's also been verified that the hospitals came to his office and said, "We want you to institute this policy. We want you to help us move recovered, but still positive patients out of our facilities and into nursing homes." The missing step there is that the Cuomo administration and its health department did not reach out to nursing homes that we know of. It didn't consult with them in advance.

If it had it might've thought twice before instituting this policy. It might've looked for a third alternative because the nursing homes at least many of them and the experts in that area were strongly opposed to policies like this as they cropped up around the country. They were putting up very clearly worded statements that this is going to be dangerous and people are going to lose their lives if you move ahead with this.

I feel like the governor had an obligation even in those very high-pressure situations, to at least consultant nursing homes and gives them a heads up before instituting a policy like this.

Brian: As much of you as you've looked at this story in detail, did you look at other states by comparison because I know certainly in the political sector some of Cuomo's Republican enemies like to point out, but maybe this is accurate. Cuomo under the various pressures that you just described did move recovering COVID patients from the hospitals back to their nursing homes. In Florida, under governor DeSantis and some other states they were faced with the same choice and they did not. Is that accurate?

Bill: I believe so. I can't say that I've done a comprehensive analysis of every state's policy exactly. The wording on these things really matters. Clearly, there were other states that went in this general direction of encouraging nursing homes to accept positive patients. There were other states such as Florida that went in the opposite direction of prohibiting nursing homes from accepting positive patients.

I think in hindsight that second choice was the better one at least for most states. If you did have a situation where your hospitals were completely overwhelmed, that might be a different story. This is a tricky balancing act. There's a lot of different parts to it. We probably should do a comprehensive analysis of the different approaches, different states took and what the impact was.

Brian: Did Cuomo know at the time that he had third options other than the hospitals or the nursing homes, some people now are saying, "Well, the Javits Center was open as a facility, but it was being underutilized. They could have moved healthy nursing home patients there." Things like that. Is that just second-guessing or was Cuomo aware of third options in front of him at the time he didn't choose them?

Bill: It's hard to know what he was aware of, what he thought were his options. It's true that the Javits Center largely sat empty. The Navy hospital ship largely sat empty. There were other temporary facilities that the state either set up or acquired access to that were used very little. In fact, most hospitals never came close to filling up.

There were some that were horrifically overburdened. That's partly because as Cuomo himself has said there's not good coordination among hospitals about reallocating patients in a crisis. There's a degree of hindsight here that it may be that the governor was so focused on this wave that he thought was coming which was going to absolutely swamp every hospital in the state.

He didn't want to allocate beds and Javits and the Navy ship and those other facilities because he thought they were going to be needed for critically ill patients. It turns out that was an exaggerated fear, but he didn't know that at the time

Brian: We're talking mostly about the nursing home aspects of the Cuomo scandals with Bill Hammond, former longtime member of the Daily News editorial board among other things in journalism. Now a health policy fellow at the Empire Center think tank. 646-435-7280. Bruce a physician in the West village you're on WNYC. Hi, Bruce.

Bruce: Hi, good morning. One of the reasons that there was a bed shortage is that under Pataki and Cuomo 20,000 hospital beds have been closed in the last 20 years. Most of them in safety-net hospitals, mainly in communities of color exactly the places where the hospitals were, in fact, overwhelmed. There've been policy issues that predate COVID and the shocking thing is that they're still shutting down safety-net hospitals. Kingsbrook Jewish Medical Center in Brooklyn and East Flatbush that had 10 times the rate in that community of deaths from COVID than wider and richer communities is still slated to be shut down.

Brian: I would say for your interest Bruce and for others' interest, on Monday we're going to do a discreet segment on the safety-net hospitals in New York City and some state policies currently under consideration in the legislature that might hurt them even more. For you as a health policy expert now Bill, what do you think about the shrinkage of hospital beds as a contributing factor to what happened with COVID and nursing homes?

Bruce: I guess I'm skeptical that it was any factor at all because as we just discussed we never actually ran out of hospital beds in New York City or in any other part of the state. There were places in New York City where the hospitals became overwhelmed for a period. Again, that was partly because of an inability to redirect patients away from a hospital that was stressed to a hospital that was less stressed. The idea that we were short of hospital capacity in the big picture, didn't prove to be true. You can imagine a situation where we would run out of hospital beds in a once-in-a-century pandemic that was a possibility, but it didn't happen in this case.

I'm skeptical that our response to a crisis like this should be to expand hospital capacity that we're only going to need once in a century. I think we should hope we don't need it more often than that. We may need it more often than that, but it's not going to be the norm. It would be enormously expensive.

The reason that hospitals have been shrinking is not just because of anything the governors have been doing, but mainly because of market forces. Our medical system has been re-engineering itself slowly but surely in the direction of doing more procedures on an outpatient basis and also using pharmaceuticals instead of surgery in certain situations. That's a good thing. Hospitals are not a great place to spend a lot of time if you can avoid it.

To the extent we use hospitals less, that's an improvement in our medical system. It's also fair to say that safety-net hospitals bear the brunt of downsizing. That may be unfortunate, especially to the extended leaves certain neighborhoods in the city underserved. That's partly a by-product though of people voting with their feet. The hospitals that have closed have by and large been operating way below their capacity.

They've been struggling to pay their bills. There are hospitals right now in New York City and in Brooklyn, I happen to know, in particular, where the state is propping them open with hundreds of millions of dollars every year. Paying a substantial portion of their operating budget just to keep them open. That's an enormous investment. Those hospitals need that money because they don't have enough patients to pay their own bills.

There are things about the system that are dysfunctional that contribute to that. I don't think the answer is just to build more hospitals or to expand hospitals. We need a more thoughtful response. With respect to pandemics, in particular, the answer is not to build more hospitals is to build a stronger public health system that prevents the viruses from spreading as rapidly as this one.

Brian: Again, we will take a closer look on Monday at New York City's safety-net hospitals, the public hospitals, by and large. We'll continue to have that conversation on Monday's show. This is WNYC FM HD and AM New York, WNJT FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are a New York and New Jersey public radio with a few minutes left with Bill Hammond, health policy fellow at the Empire Center think tank.

It was his freedom of information law requests that unearthed a lot of what is now being called the coverup by governor Cuomo of who died were relative to nursing homes and hospitals-- relatively in nursing homes and hospitals, particularly during the early parts of the COVID epidemic. Bill Hammond a previous longtime journalist before he went into the health policy think tank field.

Bill, for our last few minutes, I'm going to ask you to dust off your journalist hat and do a little political analysis with us from your point of view, because the Sienna poll that came out this week with polling done as recently as last Friday, found much more public support for Cuomo staying in office than not. Including 61% who approved of his handling of the pandemic, so different than New York politicians now who are calling for his resignation in pretty big numbers, including Schumer and Gillibrand and many on down. How do you understand the split between public perception and elected officials' perception?

Bill: That's something I've been actually noticing for a lot of years. This disconnect between how Cuomo is perceived by the general public, which generally favorable they've elected him so many times, and how he's perceived by the people who work with them either directly or indirectly because they're in state government or they're in a business that has to do a lot of business with state government. He has a very clearly an abrasive side to his personality.

We've seen a lot of allegations of bullying, of yelling at people on the phone, of twisting arms, of being vindictive. Those are things that he views as part of his success, that he was a forceful person getting things done. He's managed to sell that to the voters as a positive. "He may be a bully, but he's our bully," is kind of the theory anyway. I think right at this particular moment there may be kind of a lag in perception that it's going to take a while for the outrage that's being felt in the inner world of Albany and of people like Schumer and Gillibrand, it's going to take a while for that outrage to seep into the consciousness of the broader population.

There were some signs in the polling that I've seen of unhappiness with particular things that the governor did. He still has broad support that could change. Especially, the area where he has to be, I think most concerned, is the attitude of Democratic primary voters because if he ever is in jeopardy of not getting the Democratic nomination, that could be fatal.

It's also possible I suppose that you could build a coalition of Republicans and moderates, but I think his most vulnerable situation is with the fraction of Democrats who vote in primaries and they tend to be more liberal. They tend to be more activist, and they also tend to be more tuned into the news and to the things that are going on that have outraged people in Albany.

Brian: Well, kind of that point, how do you understand the political bedfellows now of the Republicans in the legislature and the most progressive Democrats in the legislature as being the core coalition most anti-Cuomo. They each seem to want them out for policy reasons that predate your findings or other scandal allegations predate the pandemic. I think one side because they see him as too liberal and the other side because they see him as too conservative. How does that make sense?

Bill: Well, it is ironic. I think the progressives have never quite trusted Cuomo, especially on fiscal stuff. They view him rightly or wrongly, they view him as being much too stingy with money, I would say wrongly. They especially don't appreciate his resistance to raising taxes and raising taxes on the wealthy. That's a longstanding issue for them. It's contributed to their hostility to them, and it probably made them more willing to speak out to him when things started going south with respect to the nursing homes and sexual harassment allegations.

Republicans, they have a natural proclivity to be skeptical of Democrats, in general. They have an institutional goal of replacing him with a Republican candidate. There is a certain amount of irony there. Those are the two groups in the legislature who had the least to fear from a fight with Cuomo because their constituents aren't fans of his particularly. In fact, some of them ran on a platform of being skeptical and even hostile towards Cuomo's brand of politics.

Brian: Of course, we'll see where the sexual harassment allegations lead when they continue to be investigated and whether that changes the public perception as more things come out, which seemed likely, and how that intersects with people letting Cuomo off the hook as "our bully" as you describe some of the public perception before, because maybe they can live with bullying members of the state legislature, even bullying people in his office, but when it crosses that line into sexual harassment, that that may just not be politically acceptable anymore, but that is still yet to be seen.

Last question. You have followed governors and legislatures and budget seasons for a long time. Now they're in this weird position of trying to work out a budget by the April 1st deadline with all its policy implications. How in your view, does Cuomo being weakened politically right now effect tell any specific budget items might come out, tax hikes on the wealthiest New Yorkers, legal cannabis, nursing home reform very important, or anything else?

Bill: I don't have a crystal ball. I feel like this is a very-- There's a lot of turmoil in Albany. Andrea Stewart-Cousins the other day said, "I've never had a normal year in Albany." I actually looked back and I and I checked, and of course, she had not. There's always something going on, but this really is a unique situation. There are two directions this could go, the governor could decide that it's in his interest to try and compromise and meet the legislature halfway, and that would mean probably a bigger tax increase than what he has supported, as well as progress on all these other fronts. I think he's on board with recreational marijuana.

He's on board with a lot of things they want to do, but he may be more flexible on the spending and taxing part of it. The other possibility, though, is that he still has 100% of his constitutional authority over the budget, which is considerable. That gives him a lot of leverage, and so he could decide, "No, actually, my better move is to show my continued strength, to not signal weakness by compromising, but to signal strength, and to go back to my roots as a fiscally conservative Democrat, and draw some hard lines with the legislature and challenge them to override vetoes and things like that."

I hesitate to say which way he's going to go. You could see an argument for both approaches. One thing he might want to do, though, and probably will want to do is avoid any perception of bullying because that's just going to confirm the negative perception that's arisen, and so that may argue for the more conciliatory approach.

Brian: Bill Hammond, after 10 years on the Daily News editorial board, the last few years as a health policy fellow at the Empire Center think tank. It was his freedom of information law requests that were so pivotal in unearthing some more real numbers about who died in nursing homes, who died in hospitals in the early months of COVID in New York State. Bill, thank you for coming on with us. We appreciate it.

Bill: It's been a pleasure, Brian.

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