- By Steve Bittenbender | The Center Square/February 3rd, 2021
(The Center Square) – A New York Supreme Court justice has given state officials five days to turn over complete data on nursing home deaths from COVID-19.
In addition, Justice Kimberly O’Connor also ruled Wednesday that the state must pay the legal costs for the Empire Center, a think tank that filed a Freedom of Information Act request to the state Department of Health on Aug. 3.
The Empire Center in a statement hailed the ruling as a victory for open government.
“We hope Justice O’Connor’s unequivocal ruling finally pushes the Cuomo administration to do the right thing,” said Bill Hammond, the group’s senior fellow for health policy. “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.”
The department released a statement late Wednesday afternoon saying that it had been planning on releasing the data anyway.
“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,” Health Department spokesperson Gary Holmes said.
The department has delayed responding three times. According to an Empire Center statement, the most recent delay indicated the data would not be available until March 22.
“DOH does not, in the Court’s opinion, offer an adequate explanation as to why it has not responded to that request within its estimated time period or to date,” O’Connor said in her ruling.
A message to DOH officials for comment was not immediately returned Wednesday afternoon.
The ruling comes a week after Attorney General Letitia Lames issued a report indicating the state undercounted the total number of nursing home residents who died due to the coronavirus.
While no one accused the state of misrepresenting the overall death toll, concerns were raised at how the state counted its fatalities. Nursing home residents who contracted the virus in a home but were transferred to a hospital were not counted as a nursing home death if they died in the hospital.
The Empire Center said no other state reported its count in such fashion.
The attorney general’s report indicates the Cuomo administration may have undercounted the nursing home deaths by up to 50 percent.
The ruling will require DOH to release information it receives from nursing homes into the Health Emergency Response Data System, or HERDS. That data is gathered on a daily basis and includes resident deaths that happen in and out of the facilities.
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State Sen. Jim Tedisco, R-Glenville, submitted an amicus brief on behalf of the Empire Center. In a statement, he said the people have a right to know the information.
“Clearly the best disinfectant is sunlight,” he said. “Governor Cuomo’s coronavirus cover-up is crumbling down … 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.”
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