NY Ordered To Release COVID-19 Nursing Home Death Data

By Frank G. Runyeon
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Law360, New York (February 3, 2021, 6:27 PM EST) -- A New York state court judge Wednesday ordered health officials to rapidly release COVID-19 nursing home death data — statistics at the heart of a political maelstrom just days after the state attorney general blasted the department for undercounting deaths by an estimated 55%.

New York State Supreme Court Justice Kimberly A. O'Connor said the state had five business days to hand over the data, ruling in favor of nonprofit think tank Empire Center for Public Policy as she found officials at the New York State Department of Health had violated the state's Freedom of Information Law by repeatedly rebuffing the request for six months, only supplying last-minute excuses.

"DOH has had ample time to respond to Empire Center's FOIL request," Justice O'Connor wrote. "Its continued failure to provide petitioner a response, given the straightforward nature of the request" and the fact that some of the information was already public "goes against FOIL's broad standard of open and transparent government and is a violation of the statute."

The judge awarded attorney fees — likely to total between $5,000 and $10,000, the Empire Center's attorney told Law360 — after deciding DOH subjected the organization to "unreasonable delays and denials of access."

"It's the right decision because the Department of Health did not have any excuse for not providing the records it's been collecting all along," said Empire Center's attorney, Cameron J. Macdonald of the Government Justice Center. He said he expected the health department would release the data publicly and not give the organization "the satisfaction" of exclusively obtaining the records.

A spokesman for the health department indicated the data would be released online, but did not immediately respond to a request for where exactly it would be posted.

"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," said spokesperson Gary Holmes.

The release of the data is significant because it will be the first time the public will have access to what health officials knew about the total confirmed and presumed COVID-19 death toll in nursing homes — reported to be nearly 13,000 last week. The attorney general's allegations of undercounting were based on a limited survey of nursing homes.

The number of nursing home deaths has become a political lightning rod for Gov. Andrew Cuomo, who has made himself the face of his administration's response to the coronavirus pandemic with regular televised COVID-19 briefings. 

State Sen. James Tedisco, who filed an amicus brief in support of the Empire Center, released a statement, saying, "Governor Cuomo's coronavirus cover-up is crumbling down" and accusing him of "hiding the real number of nursing home residents who died from COVID-19," pointing to the attorney general's findings last week. 

New York Attorney General Letitia James claimed the health department "undercounted" COVID-19 deaths in nursing homes in a preliminary report on its investigation. A survey of 62 nursing homes showed there was a 55% discrepancy between what the facilities told James' investigators and what state health officials told the public.

Health Commissioner Howard Zucker responded to the attorney general's report in a 1,700-word press statement, contesting the idea of undercounted deaths, even as he increased the estimated nursing home death toll by 50%, citing an ongoing "audit" of the statistics.

The report said the attorney general "is investigating those circumstances where the discrepancies cannot reasonably be accounted for by error or the difference in the question posed."

In a quirk of state law, the attorney general's office acted as the state's lawyer, defending the health department in the Empire Center's FOIL lawsuit even as James' own investigators questioned the health department's handling of the data as part of an independent investigation into nursing home deaths during the pandemic.

Macdonald said "it was bizarre" to see the attorney general on both sides of the dispute. The attorney general directed requests for comment to the health department.

The Empire Center is represented by Cameron J. Macdonald of the Government Justice Center.

The health department is represented by Melissa Latino of the Office of the Attorney General for the State of New York.

Tedisco is represented by his staffer Michael P. Mansion.

The case is Empire Center for Public Policy v. New York State Department of Health, case number 906023/2020, in the New York State Supreme Court, County of Albany.

--Editing by Bruce Goldman.

Clarification: This article has been updated to clarify DOH's updated death toll figures.

For a reprint of this article, please contact reprints@law360.com.

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