New York’s Nursing Home Nightmare

Through the first 11 months of New York’s coronavirus pandemic, the true toll in New York nursing homes remained hidden.

The Health Department’s public reports counted only residents who died physically within the homes, leaving out potentially thousands more who died after being transferred to hospitals. This understated the human loss and impeded efforts to learn critical lessons from a public health catastrophe.

To obtain the full truth, the Empire Center filed suit against the Health Department under the Freedom of Information Law. On Feb. 3, a court ruled in favor of the center’s case and ordered the Health Department to produce the requested records. On Feb. 10, after delaying for more than six months, the department provided the dates and locations of nearly 16,000 deaths involving long-term care residents, including more than 5,000 that occurred in hospitals.

This page documents the progress of the case.

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Latest Updates on Empire Center v. Department of Health

Friday, March 5: The Wall Street Journal and The New York Times report that aides to Governor Cuomo altered a July report on nursing homes from the Health Department to remove a more comprehensive count of deaths, omitting thousands of residents who had died in hospitals.

Thursday, March 4: An Empire Center analysis of nursing home data finds little or no evidence that staffing levels or for-profit ownership correlated with resident mortality. It also reports that the seven state-owned facilities, five of which are dedicated to veterans, collectively had the highest death rate of any ownership sub-group.

Thursday, Feb. 18: An Empire Center analysis of newly released state data finds a statistically significant correlation between COVID-positive admissions to nursing homes and higher death rates in those facilities.

Friday, Feb. 12: The Albany Times Union reports that the FBI and the U.S. attorney’s office in Brooklyn have opened an investigation of the Cuomo administration’s handling of the pandemic in nursing homes.

Thursday, Feb. 11: The New York Post reports that a top aide to Governor Cuomo privately told legislators that the administration had withheld nursing home data because they were concerned it would be used against them by President Trump and federal investigators.

Wednesday, Feb. 10: The Health Department responds to the Empire Center’s FOIL request with the dates and locations of more than 14,000 deaths involving residents of nursing homes and assisted living facilities, including 4,775 residents who died outside of the facilities from confirmed cases of COVID-19. Omitted from the data were: 671 residents who died outside the facilities with presumed cases of COVID-19, and approximately 1,000 deaths in adult-care facilities that are not categorized as “assisted living.”

Saturday, Feb. 6: In a first step toward complying with the Feb. 3 court order, the Health Department posts updated facility-level death counts in nursing homes as well as assisted living facilities and other adult-care facilities, including 5,596 deaths that occurred in hospitals. The update pushes the known COVID-19 toll in long-term care facilities to almost 15,000, 63 percent higher than it was 10 days earlier.

Wednesday, Feb. 3: Judge Kimberly O’Connor rules that the Health Department is in violation of the Freedom of Information Law, orders release of the requested nursing home data within five business days and awards attorney’s fees and court costs to the Empire Center.

Friday, Jan. 29: In a letter to Judge Kimberly O’Connor, the Empire Center’s attorney highlights findings of the attorney general’s report and urges the court to issue a ruling.

Thursday, Jan. 28: A report by Attorney General Letitia James confirms that the Health Department has been undercounting nursing homes deaths and estimates that the full toll is 50 percent higher than what the department has reported. In a response, Health Commissioner Howard Zucker reveals for the first time that nearly 4,000 nursing home residents had died of COVID-19 in hospitals as of Jan. 19, bringing the total nursing-home toll to almost 13,000.

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.
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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.

Empire Center Logo "...the Empire Center is the think tank that spent months trying to pry Covid data out of Mr. Cuomo's government, which offered a series of unbelievable excuses for its refusal to disclose...five months after it (the Empire Center) sued, Team Cuomo finally started coughing up some of the records." -Wall Street Journal, February 19, 2021

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