Judge Orders Release Of N.Y. Data On Nursing Home Deaths

Feb 4, 2021

A state judge ordered the New York State Department of Health to release records about nursing home residents who died of COVID-19 in a Wednesday ruling that said the agency's failure to do so already was a “violation” of New York's open government law.

Albany County Acting Supreme Court Justice Kimberly O'Connor also ordered Gov. Andrew Cuomo's administration Wednesday to pay legal fees for The Empire Center for Public Policy, a conservative-leaning, nonprofit think tank that filed suit demanding the release of the records last fall.

New York regularly releases the number of residents who died at individual nursing homes and assisted living homes after testing positive for COVID-19. But, unlike other states, it does not regularly give out that information for those residents who died at hospitals.

The Empire Center filed an August 3 request for records about all long-term care residents who died of COVID-19.

Even though nursing homes have to file daily reports of all resident deaths, regardless of location, the Department of Health argued it needed months to compile records about long-term care residents who died at hospitals.

The judge ordered the Department of Health to release the information within five business days, and said the agency violated the state's Freedom of Information law by failing to provide a reasonable date to grant or deny the Empire Center's request.

“Its continued failure to provide petitioner a response, given the straightforward nature of the request, how the data is collected and maintained, and the fact that some of the requested data has already been made publicly available without personally identifying information, goes against FOIL’s broad standard of open and transparent government and is a violation of the statute,” O'Connor said.

Last Thursday, New York Attorney General Letitia James released a report criticizing the Cuomo administration for failing to report the deaths of thousands of nursing home residents who died at hospitals.

Later that day, Cuomo's administration said at least 12,743 nursing home residents died of the virus at hospitals and nursing homes as of Jan. 19, far greater than the state's tally of 8,505 deaths at nursing homes.

State Health Commissioner Dr. Howard Zucker has stonewalled requests for records since the lawsuit was filed by a conservative think tank, The Empire Center for Public Policy, in August.

Zucker argued that the department needed months to compile records for long-term residents who died at hospitals.

Zucker is expected to testify about these numbers at a budget hearing on February 25.

“With the preliminary audit complete, we were already in the process of responding to the their [sic] FOIL request, and updating DOH’s website with publicly available information,” Department of Health spokesperson Gary Holmes said in a statement.