ALBANY, N.Y. (NEWS10) — The New York State Department of Health has responded to the state legislature’s letter asking for information relating to the coronavirus pandemic and the number of deaths it caused in New York nursing homes.

In a January report, the New York attorney general’s office claimed the New York State Department of Health (DOH) may have undercounted the number of nursing home deaths due to COVID-19 by as much as 50%.

Lawmakers had been requesting data from the DOH for months as they awaited testimony in a health budget hearing by Department of Health Commissioner Howard Zucker. The DOH released the information to the New York Legislature Wednesday night.

New York Sens. Rachel May, Gustavo Rivera and James Skoufis issued the following joint statement upon the letter’s release:

“In late January, we made it explicitly clear to the Administration that we expected answers to our outstanding nursing home questions by the time Commissioner Zucker presented testimony at the forthcoming health budget hearing. While we appreciate that our letter from August 2020 has finally been answered and, two weeks ago, nursing home data was released, it is unacceptable that it took so long. Our original letter was sent following 40 hours of hearing testimony and after so many legislators, families, and members of the public demanded answers.

As we release this information publicly, we will be reviewing the responses and we look forward to continuing to follow up with the Administration, including at the upcoming budget hearing.  We had a very productive  meeting  tonight with the administration and look forward to continuing this dialogue.  

To be clear, we will certainly have more questions as we review this information. While some of our Republican colleagues in the Legislature  continue to shamefully play politics with the tragedy that unfolded in our state’s nursing homes, we are, instead, committed to getting answers, holding stakeholders accountable, and advancing legislative solutions in a sober, thoughtful manner. That’s exactly what we are doing and what we will continue to do.”

Joint Statement From Senate Committee Chairs May, Rivera, & Skoufis

The Empire Center for Public Policy and Senator Jim Tedisco have also been fighting for more detailed information from DOH. They filed an initial FOIL request on August 3, 2020, which sought the release of Health Emergency Response Data System (HERDS) data regularly submitted to DOH by facilities throughout the state.

Six months later, on February 3, the New York State Supreme Court gave Gov. Andrew Cuomo five days to respond to the request.

The Empire Center for Public Policy has now compiled the information and created a spreadsheet that outlines nursing home deaths by facility, county, date of death, and whether the death was in-facility or out-of-facility death, and COVID confirmed or COVID presumed.

However, they said the information is still incomplete and falls short of the court order. They said in-part:

The release came six months after the FOIL request was submitted, five months after we and the Government Justice Center filed suit, and one week after a court found that the department had violated FOIL and ordered it to release what were clearly public records.

Still, the department’s response falls short of what was requested—and therefore what Justice Kimberly O’Connor ordered.

First, the records do not fully account for the deaths of some 600 residents that occurred outside of the long-term care facilities, most often in hospitals, in which the COVID-19 diagnosis was presumed rather than confirmed.

The department provided a summary of those deaths, but not their dates. The department has been reporting presumed deaths inside the facilities since early May. Withholding this data appears to be a violation of Justice Kimberly O’Connor’s court order, and we will attempt to address this first with DOH.

Second, the department provided the data in a password-protection spreadsheet when we had specifically requested otherwise. This was a relatively minor inconvenience, but violates the spirit if not the letter of the Freedom of Information Law.

Between last week’s court order and tonight’s formal response, the department posted new death totals for each facility, including hospital deaths that had previously been omitted. Those revelations increased the known death toll from about 9,000 to almost 15,000—making clear that the pandemic’s toll on long-term care residents was much worse than the Cuomo administration previously portrayed it to be.

Empire Center for Public Policy

At the time the AG’s report was released, Commissioner Zucker responded by saying his department did not undercount the deaths but rather that the discrepancy was a distinction. He said DOH distinguished between deaths in hospitals or at nursing homes differently than the attorney general’s office did.

“We’ve also said that there have been hospital deaths. Back in August we said that we would get the legislature the number, and we were working on that, particularly in anticipation of my budget hearing, which is coming up next month,” Zucker said in January. “The total number of deaths does not change. That number has not changed, and we put that out. And to misrepresent that number is factually inaccurate.”

Zucker was scheduled to testify in a health budget hearing at the beginning of the month, but it was later pushed back by several weeks. Republican lawmakers are now calling for additional hearings for the purpose of subpoenaing information from DOH, including communications regarding a March 2020 order that required nursing homes to re-admit COVID-positive patients as well as the withholding of data from the public. 

In addition to the number of COVID-19 deaths, the AG report also highlighted the need for reform in New York state nursing homes. Advocates are now calling for improved staffing levels, and legislation has been introduced that would allow residents to designate someone for personal care visitation as well as expand compassionate care visits.