State ordered to release data on COVID-19-related nursing homes deaths

ALBANY — A state judge ruled Wednesday that the state Department of Health violated the law in delaying for months the release of data on the number of nursing home residents who died of COVID-19 after being transferred to hospitals.

Acting Supreme Court Justice Kimberly O’Connor in Albany ordered the state Health Department to release the total number of deaths of nursing home residents, whether they died in a nursing home or after being sent to a hospital. She said the state must provide the data within five days to the Empire Center think tank and the Government Justice Center, a good-government advocate, which together sued the Cuomo administration to compel release of the records under the state Freedom of Information Law.

The Empire Center submitted its records request on Aug. 3. The Health Department's latest said the records wouldn’t be available until March 22.

"The court is not persuaded that (the state’s) date for responding to the Empire Center’s FOIL request is reasonable," the judge stated. The state Health Department "has had ample time to respond" and the delay "goes against FOIL’s broad standard of open and transparent government and is a violation of state statute."

Gov. Andrew M. Cuomo has refused to provide the figure for months in his coronavirus press briefings and has drawn criticism from relatives of residents as well as Republican and some Democratic legislators. Cuomo has said he wouldn’t release the total number of nursing home residents until he is sure the count is accurate.

State Health Commissioner Howard Zucker said last week that deaths associated so far with nursing homes was 12,743, but that the audit of the numbers was continuing.

"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," said Gary Holmes, state Health Department spokesman. He wouldn't say if the state would appeal the decision to the appellate court and Court of Appeals.

Legislators of both parties are considering subpoenaing the Cuomo administration to obtain the records and to answer questions in a public hearing.

"The public is clearly entitled to know the full impact of coronavirus in nursing homes," said Bill Hammond of the Empire Center.

Cuomo has blamed hospitals and nursing homes for making the count difficult. In the lawsuit, the state Health Department repeated those arguments and said the crush of work to contend with COVID-19 also interfered with a faster release of the data.

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.