The Empire Center’s Fight for Truth about Covid in New York Nursing Homes
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.
Governor Cuomo’s nursing home cover-up was one of several scandals, along with accusations of sexual harassment, that led the Assembly to open an impeachment investigation in March 2021. That August, Cuomo resigned rather than face impeachment and removal from office.
This page documents the progress of Empire Center’s legal fight for the truth about the pandemic in New York’s nursing homes.
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Recent developments
Sept. 3, 2024: House Select Subcommittee on the Coronavirus Pandemic announces that former Governor Cuomo will testify at a public hearing on Sept. 10.
June 12, 2024: House Select Subcommittee on the Coronavirus Pandemic conducts a transcribed interview with former Governor Cuomo.
May 17, 2023: The Empire Center’s Bill Hammond testifies at a hearing of the House Select Subcommittee on the Coronavirus Pandemic focused on the Cuomo administration’s handling of the crisis in nursing homes.
Timeline of Empire Center v. Department of Health
Aug. 24, 2021: Lt. Gov. Kathy Hochul is sworn in as New York’s 57th governor.
Aug. 10, 2021: Facing likely impeachment by the Assembly, Governor Cuomo announces his resignation effective in 14 days.
May 17, 2021: Tax documents reveal Governor Cuomo’s COVID-19 book deal was worth over $5 million.
April 20, 2021: More than 5,000 New Yorkers sign an Empire Center petition calling on the New York state government to release the full nursing home data.
April 6, 2021: Governor Cuomo repeals the legal immunity granted to New York nursing homes during the pandemic, meaning they can be held liable for the treatment of patients with coronavirus.
March 31, 2021: The New York Times reports that, while government staff was working on Governor Cuomo’s COVID-19 memoir, they were concurrently omitting actual nursing home death toll numbers from health department reports.
March 11, 2021: The state Assembly opens an impeachment investigation of Governor Cuomo, focused on his handling of nursing home data, accusations of sexual harassment and other issues.
March 5, 2021: 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.
March 4, 2021: 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.
Feb. 18, 2021: 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.
Feb. 12, 2021: 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.
Feb. 11, 2021: 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.
Feb. 10, 2021: 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.”
Feb. 6, 2021: 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.
Feb. 3, 2021: 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.
Jan. 29, 2021: 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.
Jan. 28, 2021: 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.
Jan. 19, 2021: 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.
Jan. 13, 2021: 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.
Nov. 9, 2020: 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.
Nov. 5, 2020: 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.
Oct. 30, 2020: Empire Center v. New York State Department of Health is assigned to Hon. Kimberly O’Connor, acting state Supreme Court justice in Albany County.
Oct. 29, 2020: The Empire Center files its reply affirmation, rebutting the arguments in the state’s response.
Oct. 26, 2020: 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.
Oct. 22, 2020: 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.
Oct. 12, 2020: 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.”
Sept. 29, 2020: Sen. James Tedisco, R-Saratoga, announces that he is filing a friend-of-the-court brief in support of the Empire Center’s case.
Sept. 25, 2020: 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.
Sept. 18, 2020: 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.
Sept. 16, 2020: DOH rejects the Empire Center’s appeal.
Sept. 1, 2020: 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.
Aug. 31, 2020: 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.”
Aug. 3, 2020: 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
- Op-ed: Andrew Cuomo is still fibbing about his deadly Covid nursing-home order, (New York Post, June 14, 2024)
- Report: ‘Like Fire Through Dry Grass’: Documenting the Cuomo Administration’s Cover-up of a Nursing Home Nightmare (Aug. 17, 2021)
- Op-ed: New York Needs to Release Its Covid Data (March 24, 2021)
- Press release: Report: New York’s Proposed Nursing Home Fixes Cause for Concern (March 4, 2021)
- Report: Implications of COVID-19 Mortality Patterns for Nursing Home Regulation in New York (March 4, 2021)
- Press release: Empire Center Rebuttal to NY Health Department Pushback (Feb. 19, 2021)
- Report: COVID-positive Admissions Were Correlated with Higher Death Rates in New York Nursing Homes (Feb. 18, 2021)
- Press release: Update on DOH compliance with the Empire Center’s nursing home FOIL request (Feb. 17, 2021)
- Op-ed: Cuomo’s ‘blame Trump’ story for the nursing-home coverup doesn’t remotely add up (New York Post, Feb. 12, 2021)
- Press release: Cuomo Administration Releases FOIL-Requested Nursing Home Data (Feb. 10, 2021)
- Blog post: New York Reveals Another 1,516 COVID-19 Deaths in Long-Term Care Facilities (Feb. 7, 2021)
- Blog post: The Cuomo Administration Releases More Data on Coronavirus Deaths in New York Nursing Homes (Feb. 6, 2021)
- Blog post: The State’s Revised Nursing Home Death Toll Leaves Many Questions Unanswered (Feb. 5, 2021)
- Press release: NY Supreme Court Rules in Favor of Empire Center Petition for Complete Nursing Home Information (Feb. 3, 2021)
- Press release: Empire Center & Government Justice Center Push for Ruling on Nursing Home Death Records (Jan. 29, 2021)
- Op-ed: It was like pulling teeth (Daily News, Jan. 29, 2021)
- Press release: Statement on New York’s Underreporting of Coronavirus Deaths in Nursing Homes (Jan. 28, 2021)
- Blog post: The Cuomo administration is withholding data on nursing home vaccinations as well as deaths (Jan. 27, 2021)
- Press release: Cuomo Delays Releasing Nursing Home Data for Two More Months (Jan. 13, 2021)
- Blog post: In Spite of Pandemic Precautions, COVID-19 Is Surging in New York’s Nursing Homes Again (Dec. 17, 2020)
- Blog post: The Autumn Coronavirus Wave Is Hitting New York’s Nursing Homes, Too (Nov. 12, 2020)
- Blog post: A Fight Over the Coronavirus Death Toll in Nursing Homes Highlights Weaknesses in FOIL (Oct. 28, 2020)
- Op-ed: The Hospital Lobbyists Behind Cuomo’s Nursing Home Scandal (Wall Street Journal, Sept. 18, 2020)
- Press release: Empire Center Sues Cuomo Administration for Withholding Nursing Home COVID Data (Sept. 18, 2020)
- Blog post: The CDC’s Nursing Home Death Count Is Even Less Complete Than New York’s (Sept. 8, 2020)
- Blog post: The Health Department Stalls a FOIL Request for the Full COVID Death Toll in Nursing Homes (Sept. 1, 2020)
- Testimony: Residential Health Care Facilities and COVID-19 (Aug. 10, 2020)
- Blog post: The DOJ’s Probe of Coronavirus in Nursing Homes Appears to Leave Out Most Victims (Aug. 28, 2020)
- Video podcast: NY’s COVID-19 Nursing Home Toll: Did State Policy Make it Worse? (July 13, 2020)
- Blog post: Cuomo Administration Ducks Important Questions on Nursing Homes (July 8, 2020)
- Blog post: Nursing Home Vacancy Rate Soars, Hinting at a Higher Coronavirus Toll (June 30, 2020)
News Coverage
- “Cuomo says to get vaxxed so you don’t kill Granny — amid his own nursing home scandal,” New York Post (May 3, 2021)
- “Major shakeup to “safe staffing” bill for hospitals, nursing homes,” Spectrum News (April 23, 2021)
- “Team Cuomo’s nursing-home coverup was even worse than we knew,” New York Post (April 8, 2021)
- “Cuomo administration tracked nursing home deaths despite claims they couldn’t be ‘verified,’ document shows,” Fox News (April 7, 2021)
- “Gov Cuomo signs bill repealing legal immunity granted to New York nursing homes during pandemic as he faces probe into hundreds of excess deaths at care facilities,” Daily Mail (April 7, 2021)
- “NY lags in vaccinating older adults as eligibility expands to 16 and older, CDC data shows,” Lohud (April 6, 2021)
- “A Ray of Sunlight for New York,” The New York Sun (March 25, 2021)
- “Why Someone Hid Accurate Death Count for New York Nursing Homes,” Daily Signal (March 23, 2021)
- “F.B.I. Investigating Whether Cuomo Aides Gave False Data on Nursing Homes,” New York Times (March 19, 2021)
- “How One Cozy Relationship Influenced Cuomo’s Covid Response,” The Nation (March 12, 2021)
- “Pride, and publication, go before a fall: Twin Cuomo scandals are his own doing,” Daily News (March 5, 2021)
- “Follow the Misleader,” Wall Street Journal (March 5, 2021)
- “Think tank questions nursing home COVID cause/effect as reform plans race forward,” Daily Gazette (March 4, 2021)
- “Empire Center report suggests state’s proposed nursing home reforms based on partial data,” CBS6 Albany (March 4, 2021)
- “How an Albany Think Tank Exposed Andrew Cuomo’s Coronavirus Cover-Up,” National Review (Feb. 21, 2021)
- “Watchdog group’s study contradicts Cuomo’s own COVID findings,” Fox News (Feb. 20, 2021)
- “Editorial: Feds’ probe of Cuomo’s nursing-home scandal needs to be interference-free,” New York Post (Feb. 19, 2021)
- “Opinion: The New York Death Toll,” Wall Street Journal (Feb. 19, 2021)
- Radio interview: “The fallout from Cuomo’s pandemic powers and secretiveness” Capitol Pressroom (Feb. 19, 2021)
- “Report links controversial nursing home directive to COVID-19 deaths,” Times Union (Feb. 19, 2021)
- “Cuomo policy may have led to over 1,000 nursing home deaths, watchdog says,” New York Post (Feb. 18, 2021)
- “FBI, US Attorney investigating Cuomo’s handling of NY nursing homes,” New York Post (Feb. 17, 2021)
- “Andrew Cuomo loses Covid ‘sheen’ after nursing home scandal,” Financial Times (Feb. 17, 2021)
- “New Allegations of Cover-Up by Cuomo Over Nursing Home Virus Toll,” New York Times (Feb. 12, 2021)
- “Opinion: How Many People Participated in the Cuomo Cover-Up?” Wall Street Journal (Feb. 12, 2021)
- “Cuomo faces calls to resign amid allegations of hiding nursing home Covid deaths,” The Guardian (Feb. 12, 2021)
- “Editorial: Cuomo’s cover-up,” Daily News (Feb. 12, 2021)
- “How Many People Participated in the Cuomo Cover-Up?” Wall Street Journal (Feb. 12, 2021)
- “Cuomo Still Underreporting the Total Count of COVID Nursing Home Deaths,” ProPublica (Feb. 12, 2021)
- “Cuomo aide Melissa DeRosa admits they hid nursing home data so feds wouldn’t find out,” New York Post (Feb. 11, 2021)
- “New York Lawmakers Push for Change in Nursing Homes After Covid-19 Deaths,” Wall Street Journal (Feb. 11, 2021)
- “Cuomo admin says total coronavirus deaths in nursing homes is even higher,” Fox News (Feb. 11, 2021)
- “New data shows nearly 15,000 NY nursing home, adult care residents died of COVID-19,” WXXI News (Feb. 8, 2021)
- “Cuomo admin says total coronavirus deaths in nursing homes is even higher,” Fox News (Feb. 11, 2021)
- “New data shows nearly 15,000 NY nursing home, adult care residents died of COVID-19,” WXXI News (Feb. 8, 2021)
- “How the Empire Center Is Dragging Nursing Home Data into the Sunlight,” Spectrum News (Feb. 5, 2021)
- “Watchdog group won’t drop Cuomo suit seeking COVID nursing home death count,” New York Post (Jan. 29, 2021)
- “N.Y. Severely Undercounted Virus Deaths in Nursing Homes, Report Says,” New York Times (Jan. 28, 2021)
- “Attorney general: Many N.Y. nursing homes fumbled COVID response, state underreported deaths up to 50%,” Daily Gazette (Jan. 28, 2021)
- “New York Gov. Cuomo accused of undercounting nursing home deaths in wake of report,” NBC News (Jan. 28, 2021)
- “The real Covid death toll at nursing homes, and the staggering heartache in NY,” Syracuse.com (Jan. 28, 2021)
- “Cuomo still refuses to disclose total number of COVID-19 nursing home deaths: watchdog,” New York Post (Jan. 13, 2021)
- “Editorial: Andrew Cuomo’s blatant, illegal nursing-home coverup,” New York Post (Jan. 12, 2021)
- “Cuomo administration conceals records behind controversial nursing home study,” Times Union (Jan. 11, 2021)
- “Janice Dean: The tragic rise of Andrew Cuomo amid COVID-19,” Fox News (Jan. 4, 2021)
- “Editorial: Team Cuomo’s latest nursing home hypocrisy,” New York Post (Jan. 3, 2021)
- “Where are the nursing home death numbers?” CBS6 Albany (Nov. 18, 2020)
- “Editorial: No more delays on the release of nursing home covid death information,” Daily Gazette (Nov. 7, 2020)
- “AG claims Gov. Cuomo not violating law by delaying data on nursing home deaths,” New York Post (Oct. 27, 2020)
- “Andrew Cuomo, the King of New York,” The New Yorker (Oct. 12, 2020)
- “Fight for nursing home COVID death data goes to court,” Daily Gazette (Oct. 4, 2020)
- “Lawsuit over COVID nursing home death numbers tries to force the issue,” Daily Gazette (Oct. 4, 2020)
- “Tedisco joins lawsuit against health department for nursing home records,” Times Union (Sept. 29, 2020)
- “Cuomo admin sued for shielding COVID-19 nursing home records,” Capitol Pressroom (Sept. 29, 2020)
- “The continuing quest for truth about NY’s nursing home deaths,” Times Union (Sept. 24, 2020)
- “New York Lawmakers Seek Independent Probe of Nursing-Home Coronavirus Deaths,” Wall Street Journal (Sept. 20, 2020)
- “Empire Center sues Department of Health over nursing home records,” News10 (Sept. 18, 2020)
- “Editorial: Team Cuomo’s Latest Ridiculous Nursing-Home-Death Dodge,” New York Post (Sept. 2, 2020)
- “Cuomo admin accused of stonewalling over COVID-19 nursing home death tally,” New York Post (Sept. 1, 2020)
- “New York’s True Nursing Home Death Toll Cloaked in Secrecy,” Associated Press (Aug. 11, 2020)
- “Coronavirus Deaths in NY Nursing Homes Higher than State Data Shows, Feds Say,” New York Post (Aug. 11, 2020)
- “Policy analyst: Cuomo wrong to write-off nursing home criticism as political conspiracy,” CBS6 Albany (July 31, 2020)
- “Hearing To Focus on Thousands of Deaths at N.Y. Nursing Homes” Daily Star (July 30, 2020)
- “Hammond: We Need To Learn What Happened in Nursing Homes,” Spectrum (July 10, 2020)
- “Independence of New York’s Nursing Homes Report Faces Scrutiny,” Times Union (July 9, 2020)
- “Editorial: Nursing Home Report Requires a Second Opinion,” Daily Gazette (July 8, 2020)
- “What We Know (and Don’t Know) About NY COVID-19 Nursing Home Deaths After DOH Report,” Lohud (July 8, 2020)
- “NY Health Department Asserts Cuomo Order ‘Could Not Be the Driver’ of Nursing-Home Deaths in the State,” National Review (July 6, 2020)
Key Documents
- COVID nursing home data released by the Department of Health on Feb. 10 and Feb. 12, 2021
- Feb. 10, 2021, cover letter accompanying the Health Department’s FOIL response
- Feb. 3, 2021, court ruling by Judge Kimberly O’Connor upholding the Empire Center’s FOIL lawsuit and ordering prompt release of the Health Department’s nursing home data
- Jan. 29, 2021, letter to the court from the Empire Center’s legal counsel, the Government Justice Center
- Jan. 28, 2021, statement by the state health commissioner in response to the attorney general’s report
- Jan. 28, 2021, report by the Office of Attorney General on the “Nursing Home Response to COVID-19 Pandemic”
- Jan. 19, 2021, letter to the court from the Empire Center’s legal counsel, the Government Justice Center
- Jan. 13, 2021, FOIL extension letter from DOH
- Nov. 9, 2020, letter to the court from the Empire Center’s legal counsel, the Government Justice Center
- Nov. 5, 2020, 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, 2020, 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, July 20 version (Exhibit F)
- DOH report on COVID-19 in nursing homes, Feb. 11 update
- “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