New York governor Andrew Cuomo's March 25, 2020, executive order mandating that nursing homes accept coronavirus patients returning from hospitals has been the subject of controversy for months. Bill Hammond, senior fellow for health policy at the Albany-based think tank Empire Center, initiated a crucial Freedom of Information Law (FOIL) request for data on coronavirus in nursing homes that would eventually shed light on the consequences of that order.

It was not until February 2021, after the state finally released accurate information, that Hammond and fellow Empire Center researcher Dr. Ian Kingsbury could analyze data on nursing-home deaths in New York. What they found is that, while the order was not the sole or even primary cause of coronavirus deaths in nursing homes, it exacerbated an already-bad situation, likely resulting in "several hundred and possibly more than 1,000 resident deaths" in upstate nursing homes. (In New York City and its environs, coronavirus was so widespread that Hammond and Kingsbury concluded the March 25 order did not have a significant impact on nursing-home deaths in that area.)

Even more remarkable than the nursing-home data are the efforts to which the New York state government went to conceal them. In an interview with National Review, Hammond explained how he became interested in the data on nursing-home deaths and how the Empire Center sued the New York State Department of Health for those records.

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As the coronavirus pandemic began wreaking havoc in New York City and the surrounding suburbs in late March, the Wall Street Journal reported on a new order from the state's Department of Health:

New York told nursing-home operators that they will be required to accept patients infected with the new coronavirus who are discharged from hospitals but may be still convalescing. . . . The decision will draw pushback from some nursing-home officials, who have warned that such moves endanger residents who aren't infected by the virus, because discharged patients may still be contagious.

The March 25 order, revealed by the Journal the next day, was signed by Governor Andrew Cuomo and Health Commissioner Howard Zucker. The coronavirus was then spreading rapidly in nursing homes throughout the tri-state area, and with the death toll rising, New Yorkers and even national audiences were tuning in to Cuomo's coronavirus briefings.

But as local media outlets continued to inquire into deaths at nursing homes, the state changed the way those deaths were reported publicly. In April, New York began omitting the deaths of nursing-home residents who died at hospitals from the overall count of nursing-home victims.

"People asked about that over time, to the point where it was . . . this running issue where everybody was kind of scratching their heads: 'Why are they hiding the data?'" Hammond said. Media outlets, including the Associated Press, filed FOIL requests for the full count of nursing-home deaths, with no apparent success.

In June, Hammond discovered additional evidence that the nursing-home death toll was higher than publicly reported: the number of vacant beds at nursing homes indicated that New York's true toll was likely double what the Department of Health acknowledged.

Health commissioner Zucker then released a report on July 7 stating that the March 25 executive order did not exacerbate coronavirus outbreaks in nursing homes. The report asserted that any increased infections were caused by staff at these facilities and visiting family members of residents who unknowingly brought the virus in. But there was a major problem with the data.

"When I looked at [Zucker's report]," Hammond said, "I realized they were using the partial count of deaths" — excluding residents who died in hospitals. "Here was supposed to have been the definitive word in a quasi-academic paper, and they were hiding an unknown number of deaths." At the time, New York assemblyman Ron T. Kim (D., Queens) called the report a "cover-up."

Nearly a month later, on August 3, Zucker was called to testify before the New York legislature's Health Committee. State senator James Skoufis, a Democrat from Orange County, asked Zucker why the state did not count nursing-home residents who died in hospitals as part of its nursing-home death toll.

"He had no good answer," Hammond said of Zucker. "That was the day that I filed my FOIL. Because I thought, okay, this is obviously an issue for them, they don't want us to see it — and that means I do want to see it."

Hammond explained that New York FOIL laws are not strong enough to force government institutions to reveal records except through legal battles. Fortunately for Hammond, the Empire Center works with a not-for-profit legal organization, Government Justice Center, and GJC's team was receptive to pursuing Hammond's case.

So when the state of New York attempted to delay responding to Hammond's FOIL request, the Empire Center was able to file an appeal. When the state rejected the Empire Center's appeal in September, that action gave the think tank grounds to file a lawsuit.

The judge in Hammond's case, Albany County acting supreme court justice Kimberly O'Connor, allowed the Health Department to delay responding to the FOIL request into the new year. But in late January, New York attorney general Letitia James released her own report on coronavirus victims in state nursing homes. That report indicated that COVID-19 deaths of nursing-home residents were underreported by about 50 percent.

The report itself was a set of preliminary findings requested by Governor Cuomo himself. "But, even [James] did not have access to the Health Department's data," Hammond noted. "She's been commissioned by the governor to investigate the situation in the nursing homes, and the Health Department apparently did not provide her with the full data."

James's report was notable for another reason. "This was kind of unique for her because it was the first time she was breaking ranks with the governor," Hammond said.

The same day that James released her report, Zucker issued a statement giving the number of nursing-home residents who died of COVID-19 in hospitals — thereby admitting that the original number of nursing-home deaths the state had released was only partial, as it included only deaths that occurred in the nursing homes themselves. Zucker revealed additional numbers of deaths in the following days, but these data still did not include details requested by Hammond, such as the date of death and residence of victims.

After the state again delayed handing the records to Hammond, Judge O'Connor issued a ruling on February 3 ordering the state to turn over its records. O'Connor said that the Health Department's

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.

The Health Department released the data on February 10 — the same day that Cuomo aide Melissa de Rosa admitted to state lawmakers that the governor's administration withheld the data from the U.S. Justice Department. De Rosa said that they "froze" when the DOJ began to investigate the state.

"As embarrassing as that was for her to say, I don't think it was true," Hammond said. The Justice Department inquiry began in late August, "several months after many people had been asking this. Long before the Justice Department got involved, this was already an issue."

In other words, the Cuomo administration still has not provided a definitive answer as to why it misrepresented data on coronavirus victims in nursing homes.

What is publicly known about the nursing-home death toll appears in large part a result of Hammond's FOIL request and the ability of the Empire Center and Government Justice Center to pursue the case in court. However, Hammond also praised both local and national media outlets for repeatedly raising the issue, saying that focus on how the media portray Cuomo is "beside the point."

"The virus is what's killing people and the governor is the one who made the policy," Hammond said.