Despite Governor Hochul’s promises of transparency, the state Health Department continues responding to requests for pandemic data with stalling tactics that became notorious during the Cuomo administration.

In one striking example, the department recently responded to the Empire Center’s request for updated nursing home fatality data with the same form letter – and the same invalid excuse for delay – that it used last year as part of what came to be recognized as a cover-up.

In its letter of Sept. 22, 2021, the department said it could not produce the data until Nov. 29 – five months after the original request – “because a diligent search for responsive records is still being conducted.”

That’s exactly the same boilerplate explanation that the department gave for withholding nursing home data from the Empire Center in August 2020, and it was specious in both cases.

In reality, the requested records were readily findable in the department’s Health Emergency Response Data System, or HERDS, which had been collecting daily reports from nursing homes since early in the coronavirus pandemic.

The unwarranted delay on nursing home data is part of a pattern in how the department handles requests under the Freedom of Information Law (FOIL). Of the 62 requests for pandemic data filed four months ago by the Empire Center, nine have been completely fulfilled, four partially fulfilled and nine denied outright.

The other 40, including the request for nursing home death data, have been postponed indefinitely. In all but a few of those cases, the department claimed to be conducting a “diligent search” for records.

On Monday, the Empire Center formally appealed 32 of those postponements on grounds that the delays were unreasonable and that the department failed to commit to a hard deadline as required by law.

In its appeals related to long-term care deaths, the center also cited the outcome of its lawsuit last year – which resulted in a ruling that the department had violated FOIL and an order to promptly turn over the requested data.

The department has 10 business days to respond to the appeals.

In case it needs to be said, last year’s stonewalling did not end well.

The Cuomo administration was eventually forced to admit that the full toll among long-term care residents – including those who died after being transferred to hospitals – was almost 6,000 higher than previously known, an increase of about 50 percent.

The ensuing scandal made national headlines and contributed to the political demise of former Governor Cuomo, who resigned in August.

Once the Empire Center obtained detailed records – including the dates and locations of deaths – it found a statistical correlation between a Cuomo administration policy directing homes to admit COVID-positive patients during the first wave and higher death rates in facilities that complied.

On Tuesday, Hochul unveiled a reorganized and upgraded COVID tracker website that she described as “yet another step we are taking towards more transparency.”

Among other positive steps, the state is posting more data in tabular, downloadable format. One of newly posted data sets gives the death tolls in nursing homes, assisted living facilities and other adult-care facilities, which is an improvement over the PDF files that state had posted before. But the data set gives only cumulative totals as of Oct. 18, 2021 – without the date-specific information that would make it possible to track trends, pinpoint outbreaks or assess policy decisions.

Meanwhile, the Health Department under her management is withholding those important details in exactly the same discredited manner as it did under her scandal-scarred predecessor. If Hochul wants her administration to be truly transparent, she has a long way yet to go.

About the Author

Bill Hammond

As the Empire Center’s senior fellow for health policy, Bill Hammond tracks fast-moving developments in New York’s massive health care industry, with a focus on how decisions made in Albany and Washington affect the well-being of patients, providers, taxpayers and the state’s economy.

Read more by Bill Hammond

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