NY lawmaker signs on to lawsuit seeking information from Cuomo administration about nursing home deaths

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A New York lawmaker announced his support for a lawsuit brought against the state Department of Health in an effort to glean information about the impact COVID-19 had on nursing homes across the state.

State Sen. Jim Tedisco, R-Glenville, filed an amicus brief Monday in the Empire Center for Public Policy’s suit. The Center took the DOH to court in order to get Health Emergency Response Data Systems (HERDS) information on the nursing homes. The state uses HERDS to gather daily totals of the number of COVID deaths, both confirmed and presumed, that take place both in and out of nursing homes and assisted living facilities.

Lawmakers both in Albany and Washington, along with the U.S. Department of Justice, have asked the Cuomo administration for information about nursing homes for months. Shortly after the COVID-19 emergency began, the state directed nursing homes to admit anyone into their facilities, even if they had the coronavirus.

Shortly after that directive started in late March, the number of coronavirus-linked deaths spiked in New York, which even after it controlled the spread of the virus earlier this year still has reported more deaths than any other state.

According to the Johns Hopkins Coronavirus Resource Center, 33,144 New Yorkers have died because of COVID-19, more than the combined deaths in New Jersey and Texas, states with the next highest death tolls.

The COVID Tracking Project reports 6,656 of New York’s deaths occurred in long-term facilities, but unlike other states, New York does not count either residents or staff members who contracted the virus in a home but later died in a hospital.

On Aug. 3, the Empire Center submitted a public records request for the HERDS data, including the nursing home patients who died outside of their resident facilities. In its suit, the center said the DOH acknowledged it would respond within 20 business days. However, on Aug. 31, the state agency said the data would not be available until Nov. 5.

In its suit seeking the information, the center claims the DOH “constructively denied” its public records request.

Tedisco said in his brief that he can provide the court supplemental information to the center’s argument, including Health Commissioner Dr. Howard Zucker’s “refusal” to give legislative committees information regarding COVID-19-linked deaths at two different times.

“By all accounts the number of deaths presented does not reflect the exact number of preventable deaths,” Tedisco stated. “If the state legislature allows the Department (of Health) to continue to withhold this information, it is turning its back on its responsibility to all citizens of New York state to implement policy decisions in properly passed laws. Instead, the New York State Health Department is creating its own public policy.

“Only the Legislature by enacting legislations, subject to the Governor’s veto power, as required under the New York Constitution, has the power to make such policy decisions.”

The administration, in its own report, said deaths at nursing homes across the state occurred not because of the admissions policy, which Cuomo repealed in early May. Rather, the administration claims nursing home staff and visitors brought the virus into the facilities during the first days of the pandemic.

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