Lawmakers probe impact of state’s directive to group home operators concerning COVID-positive residents

The Cuomo administration last April issued a directive requiring state-regulated group homes for people with disabilities to admit COVID-positive residents discharged from hospitals and has refused to release data on COVID-19 infections and deaths in those homes.

The language of the April 10 advisory from the NYS Office for People with Developmental Disabilities. closely tracks the language of the controversial March 25 advisory from the State Department of Health to nursing home operators.

And just like the State Department of Health, the Office for People with Developmental Disabilities has resisted releasing data on COVID-19 infections and deaths — even when the federally mandated watchdog agency charged with monitoring the treatment of people with disabilities in group homes filed a Freedom of Information Law request.

State Sen. Anthony Palumbo (R-New Suffolk), a member of the State Senate’s mental health committee, has joined with Republican members of the mental health and disabilities committees in a demand for information about COVID-19 fatalities in group homes for people with intellectual and developmental disabilities.

The senators yesterday wrote to Dr. Theodore Kastner, commissioner of the NYS Office for People with Developmental Disabilities, requesting “thorough, up-to-date information on all COVID infections and related deaths in group homes that care for I/DD individuals” as well as copies of all communications between OPWDD, DOH and/or the governor’s office relating to the April advisory sent by OPWDD to licensed group home operators.

The Office for People with Developmental Disabilities, which regulates the group homes, on April 10 issued an advisory to group home operators that said: “No individual shall be denied re-admission or admission to a Certified Residential Facility based solely on a confirmed or suspected diagnosis of COVID-19.”

The advisory also said group home operators are “prohibited from requiring a hospitalized individual, who is determined medically stable, to be tested for COVID-19 prior to admission or readmission.”

OPWDD April 10, 2020 Memo re COVID-19 admissions by RiverheadLOCAL on Scribd

The language of OPWDD’s April 10 advisory is nearly identical to that of the controversial March 25 advisory to nursing homes issued by the State Department of Health.

After the existence of the March 25 advisory was revealed, Gov. Andrew Cuomo and Commissioner of Health Howard Zucker said the advisory followed CDC guidelines and denied it had any impact on the health and welfare of nursing home residents. In the wake of the controversy that followed the release of the advisory, Gov. Andrew Cuomo signed an executive order that effectively reversed it.

But the state resisted providing more complete data until N.Y. Attorney General Letitia James issued a critical report last month and a State Supreme Court ordered the health department to comply with the Freedom of Information Law earlier this month. Once more data was released, it was clear that the death toll in skilled nursing and assisted living facilities was about 50% higher than previously disclosed. Deaths of nursing home and assisted living residents had been reported as deaths in hospitals.

Now lawmakers want to know what effect the similar memo to group home operators had on residents.

“This policy most certainly put the health and well-being of residents in jeopardy,” Palumbo said yesterday.

But OPWDD has so far refused to supply the data needed to make that determination.

Disability Rights New York, designated by the federal government as the statewide “protection and advocacy system” to protect and advocate the rights of individuals with developmental disabilities, has been trying to access the data since early last summer.

A state is required to have a protection and advocacy system in place in order to receive federal funding under programs for individuals with developmental disabilities. Disability Rights New York is the state’s P&A system. It is federally mandated to monitor the treatment of persons with disabilities receiving care or treatment from state, city, local, or private agencies in New York.

Disability Rights New York submitted a FOIL request to OPWDD on July 1 seeking data on COVID-19 infection rates and death rates in the regulated group homes. Disability Rights New York said since the onset of the pandemic, OPWDD required all reporting agencies to report COVID-19 infections and deaths among service recipients and staff within 24 hours.

After OPWDD failed to respond to the request for more than four months — stating that it needed additional time to respond — Disability Rights New York took OPWDD to court, filing an Article 78 petition in State Supreme Court in Albany seeking an order to compel the disclosure.

“We are not able to protect our friends and family members living in these settings without this information,” Disability Rights New York executive editor Timothy Clune said in a press release announcing the lawsuit on Nov. 23. The lawsuit is still pending.

A judge in Supreme Court, Albany County earlier this month ordered the State Department of Health to produce data on COVID deaths in nursing homes sought by a Freedom of Information Law request from the government watchdog group Empire Center. In that case, the health department postponed its response to the FOIL. The court ruled that the health department violated the Freedom of Information Law. Its repeated postponements over six months constituted a “constructive denial” of the request, the court said.