The state Health Department is offering a new explanation for why it won’t provide the full death toll of coronavirus in nursing homes: it can’t find the records.

Early last month, the Empire Center filed a Freedom of Information Law request seeking a count of all nursing home residents who have died from COVID-19. It specifically sought the number who had died after being transferred to hospitals in their final days, which the department has been leaving out of its official tally.


This is an installment in a special series of #NYCoronavirus chronicles by Empire Center analysts, focused on New York’s state and local policy response to the coronavirus pandemic.


In a letter on Monday, the department said it could not yet fulfill the request “because a diligent search for relevant documents is still being conducted.”

The letter estimated the information would be provided no sooner than Nov. 5 – three months after the original request – and possibly later than that.

Postponement letters like this have become a routine part of the state’s FOIL process, and they often cite a “diligent search” as the explanation for a delay. 

In this case, however, a search of any kind should not be necessary.

Through its Health Emergency Response Data System, or HERDS, the department has required nursing homes to file daily reports throughout the pandemic. Included in those reports are counts of all residents who die from coronavirus, both within the facilities and elsewhere. 

Those numbers are the basis for the partial count that the department does make public – which stood at 6,639 as of Aug. 29, but omits potentially thousands of residents who died in hospitals.

This unusual methodology, which is used by few if any other states, gives the public a distorted picture of the pandemic. It makes it hard to compare New York to other states, or to gauge the merits of particular policies, such as the Health Department’s much-debated March 25 directive compelling nursing homes to accept coronavirus-positive patients being discharged from hospitals.

Even in the context of a 33-page report on coronavirus in nursing homes, which looked closely at the timing of resident deaths, the department left residents who died in hospitals out of its analysis.

At legislative hearings in August, lawmakers of both parties pressed the health commissioner, Dr. Howard Zucker, to release the full count. 

“It seems to me that the definition you insist on keeping on the books, and one that no other state utilizes, and makes you look better than what you actually did – that’s a problem, bro,” said Senate Health Chairman Gustavo Rivera, Democrat of the Bronx.

Zucker acknowledged having the information that lawmakers wanted, but said he was not ready to make it public: “I wish I could give you the number today, but I need to be sure it’s absolutely accurate.”

That comment is difficult to square with the idea the department needs months to search for documents.

Under the state’s Freedom of Information Law, agencies that are unable to provide requested records within 20 business days must give a reason for the delay and set a “date certain” on which the information will be made available. 

The Empire Center has appealed the department’s deferral letter on grounds that its reason for delay was implausible and that it had provided only a tentative target date, not a certain one.

The department has 10 business days to respond to the appeal. Stay tuned for further developments.



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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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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