Capital Region

Lawsuit over COVID nursing home death numbers tries to force the issue

Bill Hammond, senior fellow for health policy at the Empire Center for Public Policy, at the state Capitol on Thursday. Credit: Erica Miller/Staff Photographer

Bill Hammond, senior fellow for health policy at the Empire Center for Public Policy, at the state Capitol on Thursday. Credit: Erica Miller/Staff Photographer

ALBANY — The Empire Center For Public Policy’s lawsuit to force the state Department of Health to release full data on nursing home COVID deaths follows a long but fruitless effort to get the numbers through other means.

Senior Fellow for Health Policy Bill Hammond’s hopes were raised when the state Assembly and Senate held joint hearings on the matter in early August. Over the course of the two hearings, each stretching more than 12 hours, numerous leaders in the field testified, as did numerous interested parties (including Hammond).

But the witness with the best access to the numbers — state Health Commissioner Dr. Howard Zucker — refused to provide the numbers and batted back suggestions that his department and Gov. Andrew Cuomo’s administration did anything wrong.

The Democrats who run the committees offered firm words at times but didn’t subpoena Zucker to force the issue to a head.

“That’s the day when I finally decided I’m going to FOIL it,” Hammond said, referring to the state Freedom of Information Law.

The Cuomo administration’s propensity to delay and stall such requests for months or even years is well-known, Hammond said. When the state Department of Health missed the statutory deadline for fulfilling his FOIL request, he appealed. When the state rejected the appeal, the Empire Center sued for the information.

Joining the lawsuit in an amicus brief this past week was state Sen. James Tedisco, R-Glenville, who has been pressing for months for the same data that Hammond seeks.

Tedisco has tried a petition drive, publicity moves and a call for a nonpartisan review of nursing home COVID with bipartisan oversight. He’s attracted like-minded Republicans, and a few Democrats.

But so far he has gotten no results.

“It’s maybe just the last step you could take,” Tedisco said of joining the lawsuit. “There’s about 10 different steps that I took, that my colleagues and I took. What did we get in the hearings? Crickets.”

More: Fight for nursing home COVID death data goes to court; Precise numbers remain unreleased (link)

Asked for a response to the lawsuit, the state provided two comments:

“This is yet another publicity stunt from an arm of the far-right advocacy industrial complex looking to distract from the many failings of Trump’s federal government during this pandemic. Want to talk about transparency; reveal your shadowy funders,” said Rich Azzopardi, senior advisor to Cuomo.

Gary Holmes, a Department of Health spokesman, said: “Senator Tedisco’s never-ending bids for attention aside, the importance of accurate and reliable data to drive smart public health decisions is paramount and this data will be released once our comprehensive review is complete.”

Hammond isn’t buying that.

Here’s the thing: The state reports the number of COVID deaths in nursing homes as accurate but refuses to report the number of nursing home residents who died outside nursing homes on the grounds those numbers may not be accurate. However — both numbers are self-reported by nursing homes on the same form.

“I’m not aware of any other state that does it just that way,” Hammond said. “They’re only looking at this weird subset of data. My guess is that it’s somewhere around 50 or 60 percent of the true number.”

The total cited by the state and others is somewhere north of 6,000 New York nursing residents dead of COVID since March 1. Hammond suspects it might be closer to 10,000 but wants to know for sure.

“As the place that had one of the worst epidemics in the world, I think it’s super-important to have a clear record,” he said.

“The other shame of this is, I feel like it’s an important principle … but the real discussion we should be having is not about what happened March 25 but what happened in February,” he said.

He’s referring to the Department of Health order March 25 that forbade nursing homes from refusing to admit residents based solely on their COVID-positive status, and to the now-widespread belief that COVID was present in New York weeks before the first case was confirmed on March 1.

“We were not prepared to fight the virus,” Hammond said. “New York is a uniquely vulnerable place to a situation like this. We need to be more proactive in protecting ourselves.”

And what of Azzopardi’s jab that the Empire Center is a right-wing organ with secretive financial backing?

“My feeling about that is that I shouldn’t dignify it with a response,” Hammond said. “I’m providing facts, they’re not political statements.”

Donors include individuals, companies and foundations, and they don’t control the research or analysis the Empire Center does, he said.

“Our statement is that our donors are entitled to confidentiality and we respect that,” Hammond said.

The Saratoga Springs resident, previously a career journalist who wrote for the Glens Falls Post-Star, The Daily Gazette and New York Daily News, said the Empire Center is officially non-partisan but its free-market, smaller/smarter government stance would tend to align with policies and positions advocated by Republicans and conservatives.

Hammond allowed that the Empire Center hired him on the belief that his own philosophy and the organization’s positions are generally aligned with one another, though he is not bound to that.

As for Tedisco, after 38 years in the Legislature, almost entirely in the minority, is a tireless and vocal proponent of Republican agenda.

But he also has a history of latching onto causes and issues that cross party lines or have no party lines, because they affect people in his district or beyond.

He frames this latest such push, on nursing home data, as the latter — nonpartisan advocacy rather than a poke at one of the downstate Democrats who control all elected leadership positions in New York.

More: Fight for nursing home COVID death data goes to court; Precise numbers remain unreleased (link)

“Fall is coming,” Tedisco said. “This is a moving target, this COVID. We know a lot about it but we know there’s a lot we don’t know.

“This is one of those issues that rises above politics. I understand this may be embarrassing to the governor because the numbers may be higher, but we have to find why they’re higher. His embarrassment or what he calls politics doesn’t rise above the need to know.”

Cuomo himself got a chance to weigh in, yet again, on nursing home deaths during a conference call with reporters Wednesday.

Branding the COVID response by some local governments and by the federal government as ineffective and incompetent, respectively, he said state government’s response has been assertive and effective, and would continue to be, even if it means intruding on local enforcement powers to stamp out infection hotspots.

“I put my head on the pillow at night saying, ‘I saved lives.’ That’s how I sleep at night. And I know we have,” Cuomo said.

A reporter cited this, and asked what Cuomo would say to the New Yorkers who lost loved ones because of his March 25 directive to nursing homes.

Cuomo and top aide Melissa DeRosa took turns over the next eight and half minutes picking apart that charge, as they have many times before.

DeRosa noted that major nursing home infection clusters are still happening today, long after the March 25 order was superseded by events and by other directives.

“It defies logic to continue to say the March 25 order was the cause when you see it continue across the state today,” and in other states, DeRosa said. “When you continue to repeat these very politicized lines I ask you to actually look at the data, understand what’s still going on today.”

“Ignorance doesn’t help grieving people,” Cuomo said.

Telling someone that their loved one died because of government error, the governor added, “that’s just incorrect, untrue and frankly it’s mean.”

More: Fight for nursing home COVID death data goes to court; Precise numbers remain unreleased (link)

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