Coronavirus

NY only has a few days to turn over nursing home deaths data

A successful lawsuit against the state may soon reveal all the records.

Gov. Cuomo on Feb. 2, 2021.

Gov. Cuomo on Feb. 2, 2021. Don Pollard/Office of Governor Andrew M. Cuomo

There’s a growing demand for accountability on the part of Gov. Andrew Cuomo, who has minimized the role his administration played in the high death toll at nursing homes during the beginning of the coronavirus pandemic.

In March, Cuomo issued a directive ordering nursing homes to receive recovering coronavirus patients from hospitals, which many state lawmakers and health experts believe resulted in the high number of deaths among nursing home residents.

Then came state Attorney General Letitia James’ report from last week that alleged the state had severely undercounted nursing home deaths by as much as 50%. “As the pandemic and our investigations continue,” James wrote, “it is imperative that we understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate.”

In response, the state Health Department shared new data that 12,743 nursing home residents had died from the virus, which was significantly higher than the 8,505 it previously said. Dr. Howard Zucker, the state’s health commissioner, pointed out that the state’s website said it does “not include deaths outside of a facility.”

“The word ‘undercount’ implies there are more total fatalities than have been reported,” he said. “This is factually wrong.”

However, the commissioner acknowledged “that the number of people transferred from a nursing home to a hospital is an important data point.”

Cuomo fired back at the report’s findings, suggesting that determining where nursing home patients died of the virus should be inconsequential in the grand scheme of things. “Who cares (if they) died in the hospital, died in a nursing home? They died,” Cuomo said during a press conference, which struck some as callous and dismissive. “If you look at New York state, we have a lower percentage of deaths in nursing homes than other states,” he added.

To get the true numbers, the Empire Center for Public Policy, a conservative think tank, filed a Freedom of Information Law request in August with the health department. After months of delays, the Empire Center sued the state to gain access to the records.

On Wednesday, a New York Supreme Court judge ordered the state Department of Health to hand over all records within five business days that provide the number of nursing home residents that died from COVID-19.

“(The Department of Health) has had ample time to respond to Empire Center’s FOIL request,” state Supreme Court Justice Kimberly A. O’Connor wrote in her decision. “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.”

After this story was published, Gary Holmes, a spokesperson for the state health department, provided this statement in an email: “With the preliminary audit complete, we were already in the process of responding to their FOIL request, and updating DOH’s website with publicly available information.”

Several Republican lawmakers, including state Senate Minority Leader Robert Ortt and state Sens. Jim Tedisco and Sue Serino, have called on Zucker to resign. Tedisco has even claimed that the Cuomo administration attempted to “cover up” the total death tally and has called for a full investigation into the state’s nursing home deaths, alongside Democratic lawmakers.

Democratic state Sens. Liz Krueger and Alessandra Biaggi want Cuomo’s emergency executive powers to be removed, following the release of James’ bombshell report. “Just to put this into perspective as to why we need to limit and end the governor’s outsize power, his broad emergency power, is because in just the first six months of the governor’s expanded emergency powers, he used that power to issue 65 executive orders, and to suspend more than 250 laws,” Biaggi said on Wednesday.

However, Rich Azzopardi, one of Cuomo’s senior advisers, told NY1 that the governor’s executive powers can be vetoed by the Legislature. “The senator may not know this, but she (Biaggi) has an easily available option. The governor’s executive power is very limited. Any executive order by the governor can be easily overridden by a simple majority of the Legislature. That is their prerogative. Any executive order is immediately null and void with a simple majority vote.”

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