ALBANY — The state Health Department must release COVID-19 data reported by New York’s nursing home operators within five business days after a state Supreme Court judge ruled in favor of a Capital Region senator’s lawsuit Wednesday to force the department to release the records.
State Supreme Court Judge Kimberly A. O’Connor ruled in favor of the lawsuit filed by independent think tank Empire Center for Public Policy and Sen. Jim Tedisco, R-Glenville, against Gov. Andrew Cuomo’s administration and the state Health Department in September.
The department must disclose the requested COVID-19 nursing home data, including the deaths of nursing home residents who were transferred to hospitals and died from virus complications within five business days, according to the ruling.
The state is mandated to pay for Empire Center’s legal fees.
“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,” Tedisco said in a statement announcing the ruling Wednesday.
Last week, the state Health Department released audited data revealing 12,743 total COVID-19 deaths of skilled nursing facility residents from March 1, 2020, through Jan. 19, 2021, including 9,786 confirmed virus fatalities — 5,957 within nursing facilities and 3,829 in hospitals — and 2,957 presumed virus nursing home deaths.
Health Department Commissioner Dr. Howard Zucker was originally scheduled to testify Wednesday morning in the state Legislature’s joint budget hearing on health.
The hearing was rescheduled to Feb. 25. Lawmakers have said the department requested the postponement, citing Zucker’s commitment to be present at Cuomo’s COVID-19 briefings.
Representatives from Cuomo’s office did not respond to multiple requests for comment Wednesday about the governor’s schedule or court ruling.
The state Health Department released the presumed nursing home virus fatalities for the first time after brushing off lawmakers’ requests for updated figures for more than seven months, and in response to a report state Attorney General Letitia James published last week that concluded health officials reported as much as half the total number of COVID-19 fatalities in nursing homes.
The state Health Department has delayed the Empire Center and Tedisco’s Freedom of Information Law requests for the data three times, according to a statement from Tedisco’s office Wednesday.
Tedisco filed an amicus brief to the Empire Center for Public Policy’s lawsuit against the state Health Department for refusing to release complete COVID-19 death data of nursing home residents.
“With the preliminary audit complete, we were already in the process of responding to the their FOIL request, and updating DOH’s website with publicly available information,” state Health Department spokesman Gary Holmes said in a statement Wednesday.
Judge O’Connor granted Tedisco’s application to appear as amicus curiae, or impartial adviser, on the Empire Center’s case.
“Gov. Cuomo’s coronavirus cover-up is crumbling down,” Tedisco said. “It’s obvious that the governor’s six-month cover-up and refusal to give us these numbers shows he felt they mattered so he could hide any blame. History has shown that the cover-up is often worse than what’s being covered-up. Sadly, a lack of transparency has been a hallmark of this administration.”
Tedisco and Assemblyman Ron Kim, D-Queens, have sponsored legislation to establish an independent, bipartisan investigation with subpoena power to examine the handling of COVID-19 in state adult care facilities and nursing homes since September.
Assembly and Senate Republicans held a joint press conference Wednesday morning before the judge’s ruling was announced to push for Democrats in both majority conferences to support drafting a legislative subpoena to force the state Health Department to release all COVID-19 data in nursing homes.
Sen. Sue Serino, R-Hyde Park, led Wednesday’s event.
The Republicans’ joint push is not motivated by facts, Holmes said Wednesday.
“There are politics and there are facts, and the facts are the Legislature has known for weeks that DOH officials will be testifying at their budget hearing to answer questions about this or any other issue,” the state Health Department spokesman said. “Dr. Zucker publicly made clear that this information was going to be released before the hearing and it has been.”
Cindy Lizzi and her brothers, Phil and Ted Minnesale, recounted the loss of their 93-year-old mother, Agnes, who died from COVID-19 in April. Agnes lived in the Teresian House Center for the Elderly in Albany.
The siblings recounted how nursing home staff were uncooperative in communicating regular updates about their mother’s condition.
“She was sick,” Ted said. “They didn’t know for sure what it was because she was never tested. She had all the symptoms of COVID.”
The family is suspicious about the state’s controversial March 25, 2020, state Health Department memo that mandated long-term care facilities and nursing homes must accept and cannot discriminate against virus-positive residents by denying readmission to recover at home.
The order allowed COVID-positive residents to be permitted to return to the congregate care facility. Officials have argued that, at the time, they discharged virus patients expected to recover because of hospital capacity concerns.
Cuomo and his top aides have repeatedly said the directive was in compliance with U.S. Centers for Disease Control and Prevention guidelines at the time and is demanding answers about the decision.
“We didn’t understand until afterwards why they weren’t taking proper precautions in the nursing home,” Lizzi said. “They did not take the proper precautions at that time.”
The attorney general’s office received about 950 complaints on a hotline for family members having issues receiving communications from nursing home staff while in-person visits were prohibited between April 23 and Nov. 16 of last year. Alleged instances of neglect include insufficient personal protective equipment such as gloves, face shields, masks and gowns, as well as insufficient COVID-19 testing for residents and staff.
Nursing homes’ lack of compliance with infection-control protocols put residents at increased risk of harm and facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates, according to the report.
The state Health Department has conducted more than 2,200 COVID focus surveys at the state’s 613 nursing homes since March 1, 2020, according to a statement from the department Wednesday.
The survey netted 140 issued citations specific to infection control, 21 citations specific to Health Emergency Response Data System reporting from state hospitals and 17 citations specific to not adhering to Cuomo’s executive order on notification of COVID cases in congregate facilities.
“To date, 84 nursing homes have agreed to pay more than $1.1 million in fines as part of our enforcement efforts,” according to the department.
Senate Minority Leader Rob Ortt, R-North Tonawanda, said during Wednesday’s press conference it shouldn’t be that difficult for lawmakers to get data from the state Health Department.
Senate Majority spokesman Mike Murphy called the Republicans’ push a cheap political stunt, as multiple Democrats have publicly spoken in favor of state executives releasing total COVID-19 fatalities in nursing homes.
“When the GOP were in power, they failed to issue one single subpoena over the course of an entire decade,” Murphy said in a statement Wednesday. “Now is the time for real leadership, not grandstanding. We’ve received the full nursing home numbers only after our own Democratic senators stood up to the governor and threatened a subpoena nine days ago and the attorney general issued her report. We will continue to lead and use all tools at our disposal to get all information related to these important issues.”
Assemblyman Kevin Byrne, R-Mahopac, who serves as on the Health Committee, cited the attorney general’s report as evidence that strengthens the call to expand a bipartisan and federal investigation.
Representatives from the Assembly Majority conference did not respond to requests for comment Wednesday.
“Let’s keep pounding this drum,” said Assembly Minority Leader William Barclay, R-Pulaski. “It’s unforgivable that the governor has not been answering our questions on this to get the majority to have these hearings so we can get the information from the second floor.”