The Empire Center today filed a lawsuit against the state Department of Health (DOH) after DOH refused to release records showing the full count of coronavirus deaths among nursing home residents, including those that occurred after patients were transferred to hospitals.

The Empire Center submitted a Freedom of Information Law request to DOH in August for data collected daily by the Department from nursing home operators. The records, which track the deaths of nursing home residents regardless of where death occurs, are needed to determine how many nursing home residents have perished from the novel coronavirus since it arrived in New York last winter.

The lawsuit, filed in state Supreme Court in Albany County, seeks the release of Health Emergency Response Data System (HERDS) data regularly submitted to DOH by facilities throughout the state. DOH through HERDS collects daily numbers of confirmed and presumed COVID deaths that take place inside and outside nursing homes and assisted care facilities.

DOH has been undercounting COVID-19’s impact on New York’s nursing home residents by excluding those who succumbed to the virus outside the facilities, including after being admitted to a hospital. The Department notified the Empire Center this month that it was still conducting a “diligent search” for the requested records—despite public comments by state Health Commissioner Howard Zucker indicating the data were readily available—and requested more time.

After the Empire Center appealed, the Department still refused to share the records and Wednesday said the records “need to be located and then reviewed,” to consider the records’ “responsiveness, accuracy, legal privileges, and applicable FOIL exemptions” before letting the public see them. The records in question are numbers supplied by facilities via electronic questionnaire that DOH partially publishes on its website, specifically excluding deaths that occurred outside nursing homes.

“The novel coronavirus caught New York unprepared and hit the state more severely than almost anywhere in the world,” said Bill Hammond, the Empire Center’s senior fellow for health policy. “This case isn’t about assigning blame or embarrassing political leaders. It’s about gaining a full and accurate understanding of what happened, which is crucial to improving our defenses against the next pandemic.”

“There’s no excuse for refusing to release these records immediately,” said Tim Hoefer, president of the Empire Center. “The Health Department should have released them on its own months ago, given how serious this issue is. The Freedom of Information Law was written specifically to let New Yorkers see what their government is doing without having to hire a lawyer and file a lawsuit. It should never take a lawsuit to get the government to obey it.”

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.

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