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Judge orders release of NY data on long-term care deaths

Albert Pautler

A state judge ordered New York's Department of Health to release records about nursing home residents who died of COVID-19 in a Wednesday ruling that said the agency's failure to do so already was a "violation" of New York's open government law.

Albany County Acting Supreme Court Justice Kimberly O'Connor also ordered Gov. Andrew Cuomo's administration Wednesday to pay legal fees for The Empire Center for Public Policy, a conservative-leaning, nonprofit think tank that filed suit demanding the release of the records last fall.

New York regularly releases the number of residents who died at individual nursing homes and assisted living homes after testing positive for COVID-19. But, unlike other states, it does not regularly give out that information for those residents who died at hospitals.

The Empire Center filed an Aug. 3 request for records about all long-term care residents who died of COVID-19.

Even though nursing homes have to file daily reports of all resident deaths, regardless of location, the Department of Health argued it needed months to compile records about long-term care residents who died at hospitals.

The judge ordered the Department of Health to release the information within five business days, and said the agency violated the state's Freedom of Information law by failing to provide a reasonable date to grant or deny the Empire Center's request.

"Its continued failure to provide petitioner a response, given the straightforward nature of the request, how the data is collected and maintained, and the fact that some of the requested data has already been made publicly available without personally identifying information, goes against FOIL's broad standard of open and transparent government and is a violation of the statute," O'Connor said.

Last Thursday, New York Attorney General Letitia James released a report criticizing the Cuomo administration for failing to report the deaths of thousands of nursing home residents who died at hospitals.

Later that day, Cuomo's administration said at least 12,743 nursing home residents died of the virus at hospitals and nursing homes as of Jan. 19, far greater than the state's tally of 8,505 deaths at nursing homes.

The Department of Health has argued it's flooded with records requests during a time marked by pandemic, and that it is taking months to verify that nursing homes are accurately reporting the number of deaths of residents at hospitals.

"With the preliminary audit complete, we were already in the process of responding to their FOIL request, and updating DOH's website with publicly available information," Department of Health spokesperson Gary Holmes said in a statement.

The Associated Press is still awaiting the results of multiple records requests from DOH filed last spring, including for data about the number of COVID-19 positive residents admitted or readmitted from hospitals.

The Associated Press is one of the largest and most trusted sources of independent newsgathering, supplying a steady stream of news to its members, international subscribers and commercial customers. AP is neither privately owned nor government-funded; instead, it's a not-for-profit news cooperative owned by its American newspaper and broadcast members.
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