Two significant actions against the Cuomo administration in the span of a week shed light on its shortcomings in handling the novel coronavirus pandemic.
On Wednesday, state Supreme Court Judge Kimberly A. O’Connor ordered the state Department of Health to release data on the deaths of nursing home residents due to COVID-19. The Empire Center for Public Policy in Albany sued the DOH in September because the agency delayed the organization’s Freedom of Information Law request for this information. State Sen. Sen. Jim Tedisco, R-Glenville, filed a brief on behalf of the Empire Center.
This court ruling followed a report released the previous week from the office of state Attorney General Letitia A. James. It revealed that the DOH had failed to adequately record the deaths of all nursing home residents due to COVID-19.
Individuals who died in hospitals after leaving their long-term care facilities were not specifically identified as nursing home residents. The report from James’s office showed there were about 55% more residents from designated nursing homes who died from COVID-19 than were listed by the DOH.
This fed people’s suspicion that the DOH was misleading constituents on how a state directive affected nursing home residents. An order issued by the agency March 25 prohibited these facilities from refusing to readmit residents who had been released from hospitals based solely on a positive test for the coronavirus. As a result of public backlash, this mandate was amended in May to declare that residents needed to test negative before being allowed to return to their facilities.
On Aug. 3, the Empire Center filed a FOIL request for complete information on the COVID-19 deaths of nursing home residents. The DOH delayed this request three times, so the organization took the state agency to court, according to a story published Wednesday by the Watertown Daily Times.
Tedisco filed an amicus brief in the lawsuit. Judge O’Connor also granted Tedisco’s application to appear as amicus curiae, or impartial adviser, on the Empire Center’s case, the Times article reported. In addition to releasing the information, the state must pay the legal fees incurred by the Empire Center.
“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 news release issued Wednesday, according to the Times story.
The Empire Center recognizes that it struck a blow in favor of open government.
“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 issued Wednesday by the organization. “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.”
We commend the Empire Center for pursuing this matter and successfully gaining access to the relevant information. It now has the chance to review the data and disclose what it discovers.
And this is happening with information that’s already been made public.
“Numbers belatedly released by the Cuomo administration [more than a week ago] pushed New York’s COVID-19 mortality rate in nursing homes from 35th to 13th highest in the U.S., an Empire Center analysis shows. The new total of almost 13,000 deaths amounts to 14 percent of New York’s pre-pandemic nursing home population, which is 2 points above the national average,” the Empire Center said in a news release issued Friday, referring to a chart it prepared on statistics disclosed in the report from James’s office. “The Cuomo administration had used the smaller, partial death toll to argue that New York’s nursing homes were better protected than most. That claim was revealed as misleading on Thursday when Health Commissioner Howard Zucker issued a revised nursing home death count of 12,743, which was 50 percent higher than the state had previously acknowledged.”
It’s time for state officials to honestly address concerns raised about the DOH’s policies for nursing homes. State legislators are pressing for more transparency on this issue, and New Yorkers deserve to see all the pertinent information.
“Tedisco and Assemblyman Ron Kim, D-Queens, have sponsored legislation to establish an independent, bipartisan investigation with subpoena power to examine the handling of [the coronavirus] in state adult care facilities and nursing homes since September,” the Times article reported. “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.”
The Cuomo administration can do this the easy way, or it can cling to its code of silence — which will likely result in further legal and legislative battles. Cooperation on its part is vital on this issue. The sentiments of lawmakers, courts and residents are turning against the executive branch, so it’s time for it to reveal everything it has.