ALBANY — After months of furor from mourning families, the administration Gov. Andrew M. Cuomo issued a report in July absolving itself of blame for thousands of COVID-19-related deaths at nursing homes in New York.
Although Cuomo portrayed the findings as definitive proof, six months later, his administration is refusing to back up the findings by providing copies of the records that were the basis of the report’s conclusions. In response to a written request from the Times Union, the administration last week cited exemptions in the state Freedom of Information Law which the Department of Health contends allows the agency to keep the records secret.
Critics of the administration’s handling of the COVID-19 pandemic have been skeptical of the health department's self-exonerating report from the outset, and some epidemiologists said the data did not back up the sweeping conclusions. The lack of information also prompted the U.S. Department of Justice to demand New York and three other states with similar nursing home policies to turn over records detailing information on the nursing home fatalities.
The Justice Department's request identified New York, New Jersey, Pennsylvania and Michigan as states which "required nursing homes to admit COVID-19 patients to their vulnerable populations, often without adequate testing." At least 12 other states issued similar orders, with many governors contending they were following guidance of the Centers for Disease Control and Prevention. It's unclear where the federal investigation stands.
Bill Hammond, senior fellow for health policy at the Empire Center for Public Policy, a fiscally conservative Albany-based think tank, said it is common for the state health department to stonewall open records requests, adding, it's “fair to assume they’re doing so because there’s something they don’t want the world to know.”
“They’ve made this extremely detailed analysis and are refusing to share the details necessary to fact-check that analysis,” Hammond said of the July 6 health department report. “I think it's fair for people to wonder: 'Why wouldn't they wouldn't be happy to share it?'"
In a gubernatorial administration known for secrecy, the Department of Health has gained a particular reputation for lack of transparency. Indeed, DOH refused to detail, as required by law, why it was withholding the records from the Times Union or exactly what information was being withheld.
The report on nursing homes concluded that a controversial memo issued by the agency in late March, as the pandemic was surging, was not to blame for New York having among the nation's highest nursing home fatalities from the virus. Under the memo, facilities could not deny admission or readmission to residents based solely on a positive or suspected COVID-19 diagnosis.
If a COVID-19-positive patient at a hospital was medically stable and needed nursing home care, many nursing homes believed the directive required them to accept that person.
The policy has been criticized by Cuomo's critics, as well as in media reports, as the cause of the widespread infection rate among a highly vulnerable elderly population. At the time the July report was issued, the death toll stood at more than 6,000.
The state's report concluded the deaths occurred because staff working at the homes had brought the infectious disease into the facilities, months earlier, before the spread of coronavirus in the state was known.
The report repeatedly cited as the basis “DOH Facility Surveys” that collected information from nursing homes; much of the information was collected in early June, about a month before the the report was issued.
On the day the report was issued, the Times Union filed a Freedom of Information Law request for copies of the surveys filled out by nursing homes. But the Cuomo administration refused to provide copies of completed surveys — and also would not turn over blank copies showing the survey questions. A Department of Health spokesman, Gary Holmes, refused to say why the department was refusing to provide blank copies.
Based on the limited data the health department has publicly released on its website, it's unclear how the state reached its conclusions on the cause of the nursing home fatalities.
The report states the incidences of a staff member at a New York nursing home exhibiting COVID-19 symptoms “peaked” on March 16. The report says that correlates with “peak” deaths among residents at nursing homes on April 8, given that the time from infection to death from COVID-19 is between 18 and 25 days. Nursing home staffers were unwittingly the driver of infections among residents, it concludes.
The health department's website has data showing how many confirmed and suspected staff infections occurred among employees at each nursing home, based on a “facility survey.” But that data, categorized by month and not specific date, does not confirm that the first reported “symptoms” at nursing homes peaked on March 16. In fact, the data shows that in April, there were more than twice as many confirmed or suspected COVID-19 cases among nursing home staff as in March, including 1,700 more “suspected” cases.
Meanwhile, there does not appear to be any publicly available data showing which nursing homes first reported initial “symptoms” among staff or on which days.
A major assertion in the report is that the peak day of nursing home resident deaths came six days before the peak day for admission of COVID-19 patients from hospitals to nursing homes.
That timing demonstrates that the state's controversial admissions' policy “could not have been the driver of nursing home infections or fatalities,” the report concluded. The findings assert that if re-admissions of sick or recovering patients to nursing homes had been the driver, the peak deaths would have occurred after before the memo's issuance, not before.
But there’s also no publicly available data providing independent verification that the “peak” of admissions occurred on April 14. Similarly, the report’s assertion that deaths peakd in nursing homes on April 8 cannot be verified.
The health department maintains data on its website showing the overall number of deaths reported at each nursing home, but it’s not broken down by date. Hammond said the publicly available data is insufficient to verify the report’s findings.
“The whole basis of their conclusion had to do with the timing: Because deaths peaked on this date, it was too soon for the March 25 order to have had an effect,” Hammond said. “But you and I can’t figure out when deaths peaked — because they haven’t shared that information.”
In addition, the number of deaths the state has reported does not include residents that were infected, transferred to hospitals, then passed away. If residents who died in hospitals were included, New York's nursing home death count could increase by thousands.
The Empire Center has filed a court case seeking to force the Department of Health to provide the information about hospital deaths, which the think tank says is readily available in daily “HERDS” surveys that are filled out by nursing homes and submitted to the state.
The department has asserted in ongoing responses to Hammond's request that the delays are unavoidable as it’s been engaged in a months-long “diligent search” for the material.
For six months, the health department also claimed in response to the Times Union’s request that it was engaged in a “diligent search” for the facility surveys, even though the information had been the basis of a high-profile report issued by the agency in July.
In December, the Times Union filed an appeal, for a second time, arguing that the state's delays were unreasonable. A records appeals officer, David Spellman, asserted that the agency was not required to respond to the December appeal, since they had already rejected a similar appeal by the Times Union in August.
Shoshanah Bewlay, the executive director of the Committee on Open Government, told the Times Union that each appeal arguing that delays were unreasonable “triggers an obligation that the agency respond to it.”
Last Wednesday, the department formally rejected the Times Union’s request for the facility surveys, arguing that releasing the information "would constitute an unwarranted invasion of personal privacy." The agency also asserted that is is not obligated to release “inter-agency or intra-agency materials.”
In the end, the department did not provide a single page of records that were not available on its website.
Holmes, the department's spokesman, declined to explain why releasing the materials would raise privacy concerns, or why the materials qualified for the exemption allowing intergovernmental materials to be suppressed. Statistical and factual information contained in inter- or intra-agency materials are not exempt from disclosure. In addition, the law allows the state to withhold certain inter-agency materials, but does not require it to do so.
After the report was issued six months ago, several New York healthcare industry leaders issued statements quickly confirming the state's findings. The statements, distributed by the Cuomo administration, were from healthcare officials with close ties with the governor and who have benefited from policies and contracts in New York.