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.”
- Press release: Cuomo Delays Releasing Nursing Home Data for Two More Months (Jan. 13)
- Blog post: In Spite of Pandemic Precautions, COVID-19 Is Surging in New York’s Nursing Homes Again (Dec. 17)
- Blog post: The Autumn Coronavirus Wave Is Hitting New York’s Nursing Homes, Too (Nov. 12)
- Blog post: A Fight Over the Coronavirus Death Toll in Nursing Homes Highlights Weaknesses in FOIL (Oct. 28)
- Op-ed: The Hospital Lobbyists Behind Cuomo’s Nursing Home Scandal (Wall Street Journal, Sept. 18)
- Press release: Empire Center Sues Cuomo Administration for Withholding Nursing Home COVID Data (Sept. 18)
- Blog post: The CDC’s Nursing Home Death Count Is Even Less Complete Than New York’s (Sept. 8)
- Blog post: The Health Department Stalls a FOIL Request for the Full COVID Death Toll in Nursing Homes (Sept. 1)
- Testimony: Residential Health Care Facilities and COVID-19 (Aug. 10)
- Blog post: The DOJ’s Probe of Coronavirus in Nursing Homes Appears to Leave Out Most Victims (Aug. 28)
- Video podcast: NY’s COVID-19 Nursing Home Toll: Did State Policy Make it Worse? (July 13)
- Blog post: Cuomo Administration Ducks Important Questions on Nursing Homes (July 8)
- Blog post: Nursing Home Vacancy Rate Soars, Hinting at a Higher Coronavirus Toll (June 30)
- “Cuomo still refuses to disclose total number of COVID-19 nursing home deaths: watchdog,” New York Post (Jan. 13)
- “Editorial: Andrew Cuomo’s blatant, illegal nursing-home coverup,” New York Post (Jan. 12)
- “Cuomo administration conceals records behind controversial nursing home study,” Times Union (Jan. 11)
- “Janice Dean: The tragic rise of Andrew Cuomo amid COVID-19,” Fox News (Jan. 4)
- “Editorial: Team Cuomo’s latest nursing home hypocrisy,” New York Post (Jan. 3)
- “Where are the nursing home death numbers?” CBS6 Albany (Nov. 18)
- “Editorial: No more delays on the release of nursing home covid death information,” Daily Gazette (Nov. 7)
- “AG claims Gov. Cuomo not violating law by delaying data on nursing home deaths,” New York Post (Oct. 27)
- “Andrew Cuomo, the King of New York,” The New Yorker (Oct. 12)
- “Fight for nursing home COVID death data goes to court,” Daily Gazette (Oct. 4)
- “Lawsuit over COVID nursing home death numbers tries to force the issue,” Daily Gazette (Oct. 4)
- “Tedisco joins lawsuit against health department for nursing home records,” Times Union (Sept. 29)
- “Cuomo admin sued for shielding COVID-19 nursing home records,” Capitol Pressroom (Sept. 29)
- “The continuing quest for truth about NY’s nursing home deaths,” Times Union (Sept. 24)
- “New York Lawmakers Seek Independent Probe of Nursing-Home Coronavirus Deaths,” Wall Street Journal (Sept. 20)
- “Empire Center sues Department of Health over nursing home records,” News10 (Sept. 18)
- “Editorial: Team Cuomo’s Latest Ridiculous Nursing-Home-Death Dodge,” New York Post (Sept. 2)
- “Cuomo admin accused of stonewalling over COVID-19 nursing home death tally,” New York Post (Sept. 1)
- “New York’s True Nursing Home Death Toll Cloaked in Secrecy,” Associated Press (Aug. 11)
- “Coronavirus Deaths in NY Nursing Homes Higher than State Data Shows, Feds Say,” New York Post (Aug. 11)
- “Policy analyst: Cuomo wrong to write-off nursing home criticism as political conspiracy,” CBS6 Albany (July 31)
- “Hearing To Focus on Thousands of Deaths at N.Y. Nursing Homes” Daily Star (July 30)
- “Hammond: We Need To Learn What Happened in Nursing Homes,” Spectrum (July 10)
- “Independence of New York’s Nursing Homes Report Faces Scrutiny,” Times Union (July 9)
- “Editorial: Nursing Home Report Requires a Second Opinion,” Daily Gazette (July 8)
- “What We Know (and Don’t Know) About NY COVID-19 Nursing Home Deaths After DOH Report,” Lohud (July 8)
- “NY Health Department Asserts Cuomo Order ‘Could Not Be the Driver’ of Nursing-Home Deaths in the State,” National Review (July 6)
- Jan. 19 letter to the court from the Empire Center’s legal counsel, the Government Justice Center.
- Jan. 13 FOIL extension letter from DOH.
- Nov. 9 letter to the court from the Empire Center’s legal counsel, the Government Justice Center.
- Nov. 5 FOIL extension letter from DOH.
- Reply affirmation from Empire Center
- Verified answer from New York State Department of Health
- Memorandum of law from New York State Department of Health
- Affidavit of Rosemarie Hewig, records access officer, New York State Department of Health
- Verified petition, Empire Center for Public Policy v. New York State Department of Health
- Memorandum of law, Empire Center for Public Policy v. New York State Department of Health
- Appeal denial by DOH (Exhibit H)
- Appeal of DOH extension letter by Empire Center (Exhibit D)
- Aug. 31 FOIL extension letter from DOH (Exhibit C)
- Freedom of Information Law request for nursing home mortality records from Empire Center (Exhibit A)
- DOH report on COVID-19 in nursing homes (Exhibit F)
- “Nursing Home and ACF COVID Related Deaths Statewide Data through Sept. 16, 2020” (DOH) (Exhibit G)
- HERDS data collection form (Exhibit E)
- Department of Health advisory on hospital discharges and admissions to nursing homes
- Resolution on COVID-19 from AMDA/The Society for Post-Acute and Long-Term Care Medicine