NY Ordered to Release Data on State’s COVID-19 Nursing Home Deaths

February 4, 2021 Updated: February 4, 2021

A New York Supreme Court justice has ordered state officials to turn over complete data on nursing home deaths from COVID-19, following a months-long campaign to seek their release.

Justice Kimberly O’Connor wrote in a Feb. 3 decision (pdf) that the New York Department of Health (DOH) must release the data within five business days of the ruling.

O’Connor also ruled that the state must cover litigation costs incurred by the Empire Center, a think tank that filed a Freedom of Information Act request to the DOH and has been at the forefront of legal efforts to gain disclosure of the data.

In a Feb. 3 statement, the Empire Center called the decision a “victory for open government.”

“We hope Justice O’Connor’s unequivocal ruling finally pushes the Cuomo administration to do the right thing,” said Bill Hammond, the group’s senior fellow for health policy, in the statement. “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.”

After the Empire Center filed its request for the release of complete data on COVID-19-related nursing home deaths, on Aug. 3, 2020, the DOH postponed responding three times. An Empire Center representative told the New York Post on Jan. 13 that state health authorities said in a letter that they needed until at least March 22 to complete a full accounting of COVID-19 fatalities in long-term facilities.

O’Connor addressed the delays in her ruling, writing, “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.”

DOH officials didn’t immediately respond to a request by The Epoch Time for comment.

New York nursing homes
Families of COVID-19 victims who died in New York nursing homes gather in front of Cobble Hill Health Center in Brooklyn, N.Y., to demand that Gov. Andrew Cuomo apologize for his response to clusters in nursing homes during the pandemic on Oct. 18, 2020. (Yuki Iwamura/AP Photo)

Republican state Sen. Jim Tedisco, who submitted an amicus brief on behalf of the Empire Center, hailed the ruling as a win for transparency.

“Clearly the best disinfectant is sunlight,” Tedisco said in a statement. “Governor Cuomo’s coronavirus cover-up is crumbling down.

“I want to thank Justice O’Connor for her ruling that demonstrates that this nursing home data is public information and the people have a right to know what their government is doing.”

O’Connor’s ruling comes a week after New York Attorney General Letitia James issued a report indicating that state health officials underreported COVID-19-related nursing home deaths by as much as 50 percent in some places.

The 76-page report (pdf) released Jan. 28 follows an investigation by James’s office into claims of neglect of patients and other conduct that allegedly led to the deaths of nursing home residents and employees.

“As the pandemic and our investigations continue, it is imperative that we understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate,” James said in a statement. “While we cannot bring back the individuals we lost to this crisis, this report seeks to offer transparency that the public deserves and to spur increased action to protect our most vulnerable residents.”

The COVID-related nursing home deaths have been a flashpoint for criticism against Gov. Andrew Cuomo, a Democrat, who faced public outcry over a controversial March 25, 2020, directive—subsequently reversed in May—essentially prohibiting nursing home operators from refusing to accept residents even if they tested positive for COVID-19.

“No resident shall be denied readmission or admission to a nursing home solely based on a confirmed or suspected diagnosis of COVID-19,” the order said.

Under the order, if hospital staff determined residents were medically stable, nursing homes were prohibited from requiring that the patient be tested for COVID-19 prior to admission or readmission. Experts warned at the time that the order would lead to a surge in COVID-19 deaths in nursing homes.

Cuomo’s new order, issued in May, required hospitals to keep elderly COVID-19 patients until a negative test was confirmed or move them to another state-run facility that wasn’t a nursing home.

Andrew Cuomo
New York Gov. Andrew Cuomo delivers remarks on the coronavirus disease at the Riverside Church in New York City, Nov. 15, 2020. (Andrew Kelly/Reuters)

Cuomo has repeatedly rejected links between the since-repealed policy and the thousands of nursing home deaths in the state. Last year, the Cuomo administration flatly denied the allegations.

“Admission policies to nursing homes were not a significant factor in nursing home fatalities. And data suggests that nursing home quality is not a factor in mortality from COVID.”

A state Department of Health study (pdf) corroborated this stance, concluding that it was infected nursing home staff that fanned the spread.

“This study highlighted a critically important fact that the overwhelming majority of hospital patients sent back into nursing homes were not only medically stable, they were no longer contagious, and that 81 percent of the nursing homes receiving COVID patients from New York’s hospitals already had the virus,” said Michael Dowling, CEO of Northwell Health, in a release.

New York Health Commissioner Dr. Howard Zucker said at a press conference following the release of a report that admission policies were not a significant factor in virus-related nursing home deaths, and called attempts to blame the fatalities on the March 25 executive order a “false narrative.”

However, questions have been raised about the reliability and impartiality of the study, and a number of lawmakers have called for a probe.

Meanwhile, Harvard University health care policy professor David Grabowski told NBC New York in an interview in August of last year that he believes the March 25 directive fanned the flames of the outbreak in nursing homes but was probably not the main factor.

“Did the policy increase fatalities in the state?” Grabowski said of the executive order. “It probably did. I just don’t think it was the primary driver.”

Jack Phillips contributed to this report.

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