ALBANY — A judge Wednesday ordered the state Department of Health to release full data on COVID-related deaths in New York nursing homes.
The ruling comes in response to a court challenge by the Empire Center for Public Policy, an Albany think tank that requested the records last summer through the state Freedom of Information Law.
The state has repeatedly delayed its response to the FOIL request while also rejecting requests and demands from numerous other parties to publicize the full, accurate death toll. Empire Center took the DOH to court in September, filing an Article 78 lawsuit.
Albany County Acting Supreme Court Justice Kimberly O’Connor ruled Wednesday that the DOH violated state Public Officers Law and directed the agency to give the Empire Center the information it requested within five business days.
It was the second rebuke on the subject of nursing homes in less than a week for the administration of Gov. Andrew Cuomo. Last Thursday, the state Attorney General’s Office issued a report criticizing for-profit nursing homes for business practices that likely boosted the death toll.
The report also said the state DOH had publicly undercounted the number of deaths, possibly by 50%. Later that day, DOH said the total number of deaths was 12,743 and that the count was still incomplete. That was 46% higher than the publicly disclosed count a day earlier, 8,737.
“We hope Justice O’Connor’s unequivocal ruling finally pushes the Cuomo administration to do the right thing,” Bill Hammond, senior fellow for health policy at the Empire Center, said in a news release. “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.”
(Hammond was a reporter for The Daily Gazette in the 1990s.)
The state Department of Health commented on the substance of Wednesday’s ruling — release of data — but not on the rebuke it had contained:
“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,” spokesman Gary Holmes said.
The DOH has said the raw data on nursing home deaths is complex and needs to be reviewed and analyzed before it’s released because it is sometimes inaccurate. It restated this in legal papers in response to the Empire Center’s complaint. The Empire Center maintained the numbers already exist in a database and the state’s objections to releasing them are unfounded.
O’Connor in her ruling noted that by its own admission, DOH has the data that Empire Center sought and has been releasing parts of it to the public.
She further stated that DOH has had ample time to respond to the FOIL request, and its continued failure to do so is a violation of the FOIL statute, which sets a broad standard of open and transparent government.
O’Connor also awarded Empire Center its legal costs and fees, because of DOH’s “unreasonable delays and denials” — most recently, DOH pushed the target date for response back to March 22.
State Sen. James Tedisco, R-Glenville, who had supported the lawsuit with an amicus brief in September after multiple other attempts to pry loose the information failed, applauded the ruling in a news release Wednesday.
“Sadly, a lack of transparency has been a hallmark of this administration. 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.”
Other state officials weighed in on nursing home COVID deaths Wednesday, if not specifically on the court ruling.
Assemblyman Angelo Santabarbara, D-Rotterdam, said the Jan. 28 report by the Attorney General’s Office highlighted the need for a proposal he had previously advocated: minimum safe staffing regulations for nursing homes and hospitals.
“The report made clear that understaffing by nursing home operators was also a factor, in the unacceptably high number of deaths of our vulnerable seniors during the COVID pandemic,” he said in a news release. “Reporting has shown a similar pattern in our hospitals — too many of our nurses are overworked almost around the clock and face dangerous circumstances.”
Assemblywoman Mary Beth Walsh, R-Ballston, repeated the call for an independent, bipartisan commission (with subpoena power) to investigate how New York came to have such a high death toll.
“Today, I echo those calls for action and the need for a thorough review, particularly now that we know just how devastating of a toll unilateral decision making has had on these families,” she said in a news release. “These New Yorkers deserve compassion, accountability, action to correct the conditions in these facilities moving forward and, above all, an apology from the governor and the New York state health commissioner. I’m calling on my counterparts in the Majority to act in the best interest of New Yorkers and rise above politics by restoring our legislative authority once and for all.”
In the other chamber of the Legislature, Tedisco and other Senate Republicans called for the same thing: A nonpartisan, bipartisan review.
Any such decision would require support of the Democrats who hold a supermajority in the Assembly and Senate.
The state’s vaccination dashboard now includes county-level vaccination data for certain high-priority populations:
From left to right are percentages of hospital workers, skilled nursing facility residents and skilled nursing facility employees vaccinated as of Wednesday morning:
- Albany 88% 83% 52%
- Fulton 70% 84% 45%
- Montgomery 70% 80% 45%
- Rensselaer 87% 88% 51%
- Saratoga 73% 89% 52%
- Schenectady 79% 84% 67%
- Schoharie 65% NA NA
- Capital Region 84% 86% 55%
- Mohawk Valley 71% 79% 48%
- New York state 76% 75% 49%
(Schoharie County has no nursing homes within its borders.)
Also Wednesday, Cuomo announced 35 community-based pop-up vaccination sites will come online this week in cities statewide as part of the state’s continuing effort to make the vaccine available to members of minority groups.
Among the sites are four housing complexes in the Capital Region: South Mall Towers, Townsend Park Homes and Westview Homes, all in Albany, in partnership with Mohawk Ambulance Thursday through Saturday, as well as Kennedy Towers in Troy on Thursday in partnership with St. Peter’s.
In all, Cuomo said, over 25,000 New Yorkers would get their first shots of the vaccine this week at the sites.
Yankee Stadium, meanwhile, will open Friday as a mass vaccination site for Bronx residents only and expects to administer 15,000 doses in its first week.
That’s a combined 40,000 doses in a state that is allocated fewer than 300,000 doses a week for all of its residents, indicating Cuomo is following through on his pledge to get Black, brown and poor New Yorkers vaccinated in greater numbers.
It also suggests the massive network of vaccination sites Cuomo ordered created for the general public will continue to be chronically undersupplied in the near future.
The official statewide COVID death toll increased by 160 Tuesday to reach 35,631. Albany, Saratoga and Schenectady counties lost three residents each; Fulton County two; and Columbia, Rensselaer, Schoharie and Washington counties one each.
The seven-day average positive test rate Tuesday stood at 4.9% statewide, 4.5% in the Capital Region and 4.0% in the Mohawk Valley. At the county level, the rate was Albany 5.1%, Fulton 7.8%, Montgomery 7.0%, Rensselaer 4.3%, Saratoga 4.0%, Schenectady 3.7% and Schoharie 3.9%.
Statewide, 8,082 New Yorkers were hospitalized with COVID on Tuesday, including 405 in the Capital Region and 208 in the Mohawk Valley.