Although the state Health Department has recently revealed significant additional information about the pandemic death toll in New York’s nursing homes, it has not fully complied with last week’s court order in a Freedom of Information lawsuit brought by the Empire Center.

The Feb. 3 order from state Supreme Court Justice Kimberly O’Connor gave the department five business days to fulfill the center’s request, a deadline that expires today (Wednesday, Feb. 10).

Here is a summary of what Empire Center is seeking, what the department has provided already, and what remains to be seen.

The center’s FOIL request, submitted Aug. 3 of last year, was aimed at determining the full count of coronavirus deaths in long-term care facilities. Since early May, the department’s reporting had omitted residents who died after being transferred to hospitals, a practice used by no other state.

The center’s FOIL letter requested “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.”

It specified that the records should include “(a) the total number of such deaths recorded statewide, (b) the number of such deaths recorded on each date and (c) the number of such deaths recorded in each nursing home or assisted living facility.”

It further specified that the data should be provided in spreadsheet format, to facilitate statistical analysis.

The department initially estimated it would respond by Nov. 5, three months after the request, then postponed that date twice, most recently to March 22, 2021. It also refused similar queries from the press and members of the Legislature.

Over the past two weeks, however, the department has begun sharing more information in response to the court order and a critical report by the office of Attorney General Letitia James.

On Jan. 28, the day James’ report was published, Health Commissioner Howard Zucker revealed for the first time that almost 4,000 nursing home residents had died while in hospitals. Combined with other revisions, this increased the known death toll by 50 percent and pushed New York’s nursing home mortality rate from 35th to 13th in the U.S.

This past weekend—shortly after the court ruling in the FOIL case—the department began including hospital deaths in its daily reporting on nursing homes—giving cumulative totals for each facility and each county.

Shortly thereafter, it did the same for assisted living and other adult-care facilities—revealing that more than 1,500 residents had died in hospitals, an eight-fold increase over what was previously reported.

Taken together, the known pandemic death toll in New York’s nursing homes and adult care facilities had jumped by almost 5,800, or 63 percent, in a period of 10 days.

Although these revised totals changed the picture of New York’s pandemic, they represent a fraction of the data the department is obliged to provide under the court order.

Still to be shared are the day-by-day death tolls in each facility since the start of the pandemic, which is necessary to track how the mortality rate changed over time—and how the toll was affected by particular actions or policy decisions, such as the Health Department’s March 25 guidance compelling homes to accept coronavirus-positive patients.

Also, the department has yet to provide any of this information in spreadsheet format, which is a minimal necessity for analysis. Its daily updates are posted as PDF files, which are cumbersome to work with and do not include a statewide total.

Satisfying these requirements is unlikely to change the overall death toll, but it will provide more insight into how the pandemic unfolded—and potentially point to reforms that will better protect long-term care residents from COVID-19 and future viral outbreaks.

As the court ruled last week, all of the data requested by the Empire Center is clearly public information—and should have been released months ago. Arguably, the department ought to have been posting it all along, without having to be asked.

Assuming the department complies with the court order, the Empire Center intends to post it publicly as soon as feasible.

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.

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