New York’s Nursing Home Nightmare

Although the worst of New York’s coronavirus pandemic has thankfully subsided, the true toll in New York nursing homes remains hidden.

The Health Department’s official tally of more than 8,200 deaths counts only residents who died physically within the homes, leaving out potentially thousands more who died after being transferred to hospitals. This understates the human loss and impedes efforts to learn critical lessons from a public health catastrophe.

To obtain the full truth, the Empire Center has filed suit against the Health Department under the Freedom of Information Law. This page will document the progress of the case.

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Latest Updates on Empire Center v. Department of Health

Tuesday, Jan. 19: In a letter to Judge Kimberly O’Connor, the Empire Center’s attorney notifies the court about the Health Department’s latest extension letter, which postpones release of the requested nursing home mortality data until March 22 or later.

Wednesday, Jan. 13: In a third extension letter, the Department of Health further postponed releasing the full count of nursing home deaths until at least March 22, more than seven months after the Empire Center’s original Freedom of Information Law request. Repeating its previous explanation verbatim, DOH said it needs time to review the records for “applicable exemptions, legal privileges and responsiveness.” It again warned that additional delays are possible.

Monday, Nov. 9: In a letter to Judge Kimberly O’Connor, the Empire Center notifies the court about the Health Department’s latest extension letter, which postpones release of the requested nursing home mortality data until Jan. 13 or later.

Thursday, Nov. 5: In a second extension letter, the Department of Health further postponed releasing complete nursing-home death counts until at least Jan. 13, more than five months after the Empire Center’s Freedom of Information Law request. DOH said it needs time to review the records for “applicable exemptions, legal privileges and responsiveness,” and warned that additional delays are possible.

Friday, Oct. 30: Empire Center v. New York State Department of Health is assigned to Hon. Kimberly O’Connor, acting state Supreme Court justice in Albany County.

Thursday, Oct. 29: The Empire Center files its reply affirmation, rebutting the arguments in the state’s response.

Monday, Oct. 26: In its response to the Empire Center’s lawsuit (linked below under “Key Documents”), the Health Department contends that delaying release of its nursing home mortality data by at least three months, and possibly more, is permissible under the state’s Freedom of Information Law.

Thursday, Oct. 22: The state’s formal response to the lawsuit was delayed three business days after an attorney for the Health Department requested a filing extension. The response had been due on Oct. 22, and the Empire Center agreed to a new deadline of Monday, Oct. 26. The state separately asked to postpone the Oct. 30 return date, which is when a Supreme Court judge in Albany County is due to formally take up the case. The Empire Center opposed that request.

Monday, Oct. 12: The state health commissioner, Dr. Howard Zucker, says his department will release data detailing COVID deaths in nursing homes and assisted living facilities “once we have checked there’s no duplication.”

Tuesday, Sept. 29: Sen. James Tedisco, R-Saratoga, announces that he is filing a friend-of-the-court brief in support of the Empire Center’s case.

Friday, Sept. 25: The Office of the Attorney General, which is representing DOH, assigns an attorney to the case and requests a routine two-week adjournment. Briefs from both sides are due before a court date of Oct. 30.

Friday, Sept. 18: The Empire Center for Public Policy files suit against the Department of Health in state Supreme Court, seeking to enforce its Freedom of Information Law request for the complete count of coronavirus deaths in nursing homes.

Wednesday, Sept. 16: DOH rejects the Empire Center’s appeal.

Tuesday, Sept. 1: The Empire Center files an appeal to DOH, arguing that the requested data is readily available in the department’s Health Emergency Response Data System, or HERDS.

Monday, Aug. 31: In a letter to the Empire Center, DOH says it will respond to the Empire Center’s FOIL request no sooner than Nov. 5 “because a diligent search for relevant documents is still being conducted.”

Monday, Aug. 3: The Empire Center files a Freedom of Information request with the Department of Health seeking “records of COVID-19-related deaths of residents of nursing homes and assisted living facilities, including those who died while physically outside of the homes.”

Background

News Coverage

Key Documents

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CONTACT INFORMATION

Empire Center for Public Policy
30 South Pearl St.
Suite 1210
Albany, NY 12207

Phone: 518-434-3100
Fax: 518-434-3130
E-Mail: info@empirecenter.org

About

The Empire Center is an independent, non-partisan, non-profit think tank located in Albany, New York. Our mission is to make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.