In a victory for open government, the Empire Center today won a court ruling requiring the prompt release of full coronavirus death tolls in New York nursing homes.
The decision by state Supreme Court Justice Kimberly O’Connor requires the Health Department to provide the requested records within five business days and compensate the Empire Center and its legal counsel for their litigation expenses. The center was represented in the case by the Government Justice Center.
“We hope Justice O’Connor’s unequivocal ruling finally pushes the Cuomo administration to do the right thing,” said Bill Hammond, senior fellow for health policy at the Empire Center. “The people of New York—especially those who have lost loved ones in nursing homes—have waited much too long to see this clearly public information about one of the worst disasters in state history.”
The Empire Center requested the records under the Freedom of Information Law on Aug. 3. The Health Department had postponed responding three times, mostly recently until March 22—a delay of more than seven months.
Justice O’Connor addressed the delays in her ruling: “DOH does not, in the Court’s opinion, offer an adequate explanation as to why it has not responded to that request within its estimated time period or to date… The Court is not persuaded that the respondent’s estimated date for responding to Empire Center’s FOIL request is reasonable under the circumstances of the request.”
The state has been collecting comprehensive infection and mortality data from nursing homes throughout the pandemic, but sharing only a partial death toll with the public. Its reports exclude residents who were transferred to hospitals before dying, a practice used by no other state.
Last week, in response to a critical report on nursing homes from the state attorney general’s office, Health Commissioner Howard Zucker revealed that almost 4,000 nursing home residents had succumbed to COVID-19 in hospitals, boosting the total nursing home toll to almost 13,000.
That one-day total represents a tiny fraction of the data the Department is now obliged to release, which would include the number of deaths in each facility on each day since the start of the pandemic.
For more background on Empire Center vs. New York State Department of Health, go to empirecenter.org/nursinghomes.
The Empire Center, based in Albany, is an independent, not-for-profit, non-partisan think tank dedicated to promoting policies that can make New York a better place to live, work and raise a family.