Why Someone Hid Accurate Death Count for New York Nursing Homes

Virginia Allen /

New York Gov. Andrew Cuomo’s handling of nursing homes during the COVID-19 pandemic and his administration’s alleged efforts to hide the accurate number of related deaths beg the question: Is the cover-up worse than the crime?

The Empire Center for Public Policy, a New York-based research organization, filed a request last summer under the Freedom of Information Act seeking the accurate number of deaths in elder-care facilities from the state’s Department of Health.

Tim Hoefer, president and CEO of Empire Center, joins “The Daily Signal Podcast” to explain why it took so long for the truth about New York’s nursing home deaths to come to light, and what may be next for Cuomo. 

We also cover these stories: 

Listen to the podcast below or read the lightly edited transcript. 

Virginia Allen: I am so pleased to be joined by Tim Hoefer, president and CEO of the Empire Center in New York. Mr. Hoefer, thank you so much for being here.

Tim Hoefer: Oh, thanks for having me.

Allen: Today we are talking about Gov. Andrew Cuomo’s attempt to cover up the accurate number of COVID-19 nursing home deaths in the state of New York.

So let’s begin by going back to Aug. 3, 2020. This is the day when the Empire Center filed a Freedom of Information Act request, also known as a FOIA, with the New York Department of Health. What information were you all requesting from the Department of Health?

Hoefer: What we were looking to get was the full count of nursing home residents who had died as a result of COVID.

Allen: So you file that request, and what response do you receive from New York’s Department of Health?

Hoefer: Well, we filed the request, and the way that New York’s FOIA law works is that within five days, you have to acknowledge that you’ve received the request, and then you have to tell them, the requestor, when you intend to answer the request. They did respond and said that they’d received it and they would get back to us in a certain amount of time.

And then as we approached that certain amount of time, we were told again that they would get back to us within a certain amount of time. That ultimately happened [at] three different points.

But before we let it get that far, we filed what we refer to as a constructive appeal of denial because at some point, they have constructively denied the request by not responding to it.

Allen: How long does it usually take for a FOIA request to be fulfilled?

Hoefer: Well, that’s a loaded question. The Empire Center does a lot of FOIA-ling in New York.

We run a transparency website called SeeThroughNY, where we’ve been posting government spending data for over 10 years. We have literally filed thousands and thousands of FOIA. And sometimes they’re very, very quick and sometimes they’re not.

The Department of Health—which does provide a lot of data, even proactively provides data—in this case, just took far, far too long.

And again, that provision of FOIA that we’re talking about, the constructive denial, is because, as a government agency, you can’t receive a FOIA, give somebody a date, and then continue to push that date. That’s a clear violation of the law.

Allen: So then on Sept. 18, you all actually filed a lawsuit against the Department of Health in New York, correct, in order to get that information that you were seeking?

Hoefer: Yeah. So that’s the outcome of we had appealed the constructive denial. And when that appeal was denied by the Department of Health, the next step in the process is to file the lawsuit. That was filed in the middle of September.

The entire thing was fully briefed by the end of October. And then, as you know, it sat with the judge from that point until the ruling eventually came down early February.

Allen: Obviously, that ruling came out in February, but in January, New York Attorney General Letitia James, she had kind of launched this whole investigation to find out what is really going on in New York with the nursing homes, with the accurate number of deaths.

And then in January, she came out and released the fact that it looked like there were about twice as many nursing home deaths due to COVID-19 in New York than had actually been reported.

What was your response when you learned this information?

Hoefer: You hit the nail on the head there, that the attorney general’s report found that it looked like there was a number—it was actually 50% more is what they had suggested, which was the same number that we had been using for months to say, “We think they’re under reporting by a significant margin here.”

When the attorney general’s report came out and we saw that even the attorney general couldn’t pry these data out of the Department of Health’s hand, we followed up with a letter to the judge that had been assigned to the case and said, “Come on. What is it going to take? Even the attorney general can’t get access to these data that the Department of Health is collecting on behalf of taxpayers. You need to rule. You need to rule right now.”

And then within a matter of days, the ruling came out, ruled totally in the Empire Center’s favor. In fact, had found that we had prevailed so significantly that we were awarded costs and fees from the Department of Health. That’s significant insomuch as it means that we prevailed in a way that was unimpeachable, right?

… The case was so strong in our favor that the Department of Health had acted so poorly in this case that they were required to pay us for our time and for our costs leading up to a lawsuit and all the way through it.

Allen: Wow. Had you ever seen this kind of behavior before from New York’s government being that resistant to release information?

Hoefer: Oh, boy, yes. Again, we’ve done thousands and thousands of these FOIAs. We’ve got government entities that behave really well. We’ve got some that potentially behave poorly. The entire effort on our end is thinking about making sure that New York taxpayers have access to their data.

Going after these what sometimes appear like boring procedural plays to make sure that government is responding properly to FOIA requests, that they aren’t withholding data, that they aren’t holding things back is something that we do a lot of.

We’ve done it with the [Metropolitan Transportation Authority, which] is an example of a government entity. … I’m fighting with them right now in terms of responding to FOIA requests and even acknowledging them, let alone getting the data from them, and then using delay tactics to prevent themselves from having to actually release the data.

This was just one more in a series. We see it as part of our role to be what you could call a watchdog. You could also call it the advocate on behalf of taxpayers to make sure that government doesn’t create this barrier, that they don’t create this problem between a citizen and their right to have access to the data.

Allen: As this information has come out about the situation in New York and Gov. Cuomo’s really apparent attempt to kind of cover up those right numbers, a lot of Americans are obviously asking the question, OK, why was there a cover-up? Why were there this many nursing home deaths? What led to this?

If we go back to March 25, 2020, Gov. Cuomo issued a directive to nursing homes to take patients back into those nursing homes and care facilities, regardless of their COVID status.

We’ve heard a lot from Janice Dean, the meteorologist at Fox News, about this topic. She’s been incredibly vocal about this directive that Cuomo gave and the fact that it likely contributed to many of the elderly deaths in New York.

… He did ultimately rescind that directive in May, but what role do you think that order ultimately played in the death toll of New York’s elderly?

Hoefer: Largely this is a case of the cover-up worse than the crime. The executive order came down—you have to put yourself in the mind frame of what it was like here in the U.S., specifically here in New York, at the end of March. We didn’t know very much. There was a lot going on. People were getting sick. People were dying. This executive order came down. Obviously, in hindsight, we can see that it was a mistake.

The reason that the Empire Center and others began asking for the outcome of this executive order was because it did appear that there was a disproportionate share of nursing home residents who were dying.

Janice is a great spokesperson for that in the worst possible way, because she lost not one, but two parents. The story of Janice’s in-laws is heartbreaking.

It’s part of the reason that, from an academic perspective, we wanted to get a hold of these data, which was not to play “got you,” but rather to make sure that if there was a resurgence or in the next pandemic, that we learned from what happened in this one. We can’t do that if we don’t have access to the data.

It didn’t take long after questions started to be asked for the Department of Health to proactively, I suppose, do an analysis on the data and put out a report, which they eventually did in June or July, that found, in their words, no statistical significance between the executive order and the number of deaths in the nursing homes.

But it was when they put that report out and the data that they alluded to in it that we began to see inconsistencies, then we start asking the question, well, what’s happening here?

In a subsequent legislative hearing, Howard Zucker, who is the director of the Department of Health, was asked questions about this from legislative leaders and didn’t have a good answer. Then it became really clear that there was something there to hide and that was the genesis for what ultimately became our FOIA request, the lawsuit, and then the data that finally came out in February.

Allen: You mentioned February, that was a big month for a lot of this information. On Feb. 10, during a phone call with Democrat Secretary to the Governor Melissa DeRosa, Cuomo’s top aid said that her office worried that if the accurate numbers of nursing home deaths were released, they had concerns that that information would actually be used against them.

Were you surprised by this statement that she admitted that there had been a strategic effort to keep the accurate number of deaths hidden from the public?

Hoefer: There are several investigations happening currently into the action of Gov. Cuomo and his administration, and I think we’ll see that all play out in due time.

From our perspective, what I didn’t find as surprising is that there is a political culture in Albany and in New York state government that whether it’s the governor or whether it’s the administration or whether it’s some of these entities that we’ve been talking about, the culture is sort of to withdraw and protect.

That’s obviously, in our view, antithetical to what government should be doing, which is acting on behalf of the people it represents. So that was not surprising. In some ways, it’s rewarding for us, again, in the worst possible way, for the rest of the country to begin to see that it’s not all roses here in New York.

Gov. Cuomo did some things during the beginning of the pandemic and throughout in terms of the way that he handled himself in questions that brought people a lot of peace in this scary time, and I understand that, but there were also a lot of things that didn’t happen well.

You have to look back further than 2020 to realize that while the governor may have had a hundred-plus straight consecutive days of answering questions from the press, there were literally hundreds of days before then when he wasn’t available to take questions to the press or from the press. He wouldn’t answer questions about actions they had taken.

This is more a continuation of a decade of habit and really it was March of 2020 through January ’21 that was the exception to that typical behavior.

Allen: What are your thoughts on the way that the media has covered this situation and the cover-up, and as things have continued to unfold about that cover-up of the accurate number of nursing home deaths?

Hoefer: I think there’s a lot of interest now. There’s probably two big things at play right now as far as the crumbled administration is concerned. One is the way that they handled the nursing home data and the subsequent cover-up. The other are the allegations of sexual harassment.

By its own virtue, the sexual harassment and the behavior of the administration has taken front and center in terms of how this is being portrayed and what you’re seeing in national headlines now and that’s obviously very important.

One of the things that we’re paying close attention to is to make sure that this other story, that this actual behavior and how we look at the release data and what is available and the actions around the nursing home deaths, that that doesn’t get lost in that, because that is also a very important piece of it.

Allen: Does that concern you at all that it does seem like the media is maybe paying a little bit more attention to the situation now that these sexual harassment and even sexual assault claims have come out and there’s an increased pressure from multiple sources on Cuomo to maybe even step down? And that really began more so when these sexual harassment claims came out and not until then.

I’m just wondering if that concerns you at all that there maybe wasn’t pressure for that beginning with just the facts of the handling and the cover-up of the nursing home section.

Hoefer: Again, I think there’s a lot of things at play here and they build off of one another. This all started because the administration was forced to hand over these data and it ultimately showed that they had been sort of cherry-picking what they were going to make available.

If you look at the way that this whole thing unfolded, maybe that’s the catalyst for what followed, because what was next was the allegations of bullying and just sort of bad actions from the administration, and that came from Assembly Member [Ron] Kim, who said that the governor called and you know—and then we heard more of those stories.

And then the allegations of sexual abuse followed. And there was one, and then there was two, and now there are, I don’t know, seven or more. I’m not sure.

This piling on effect actually is an indicator of what I was saying earlier in that the previous mode of operation here in New York was just sort of withdraw and don’t answer questions and the stories go away, because you can’t force a story if you can’t get an answer out of it.

As you sort of make that chink in the armor on this nursing home data, maybe it emboldened others, maybe it made it more likely that some of these things would be covered, maybe anybody who was an accuser after that felt like they had more of a pulpit to stand up and say, “This is it.”

And ultimately, from our perspective, this all leads back to changing that political culture here, making sure that we create an environment where people feel safe and can get answers to their questions or where they can make obligations if they’d been holding back, thinking they wouldn’t be taken seriously.

Whatever the case maybe is, do we have an environment in New York where you can come in and you can ask serious questions, where you can be taken seriously, and where you can be heard?

If that’s what this all leads to, then I think it’s a victory for everybody involved. From the government to watchdogs, to taxpayers, everybody wins in that scenario.

Allen: In order to achieve that atmosphere where everyone can be heard and information is shared honestly, what needs to happen next? What needs to change here?

Hoefer: Well, we certainly can’t stop asking questions and keeping the pressure on. That is obviously a role that the Empire Center plays on the policy side.

Obviously, there are several investigations happening from federal to state to independent level on the actions of the governor and his administration in all of those issues.

We’ll continue to see that, and then what comes out of it, right? Can we continue to push that new narrative where openness really is sort of the best disinfectant in this scenario? And then what are the legislative remedies for that?

Some of the things we’re thinking about are, how do you make changes to New York’s Freedom of Information Law so that maybe government can’t withhold data as easily as they do now? And I hope, sincerely, that there are people on both sides of the aisle that are willing to address that.

New York has a long and storied history with public ethics when it comes to their elected officials. This is yet just another example of that, but it goes beyond sort of these sexual stories or sexual harassment stories. It goes right into, do these actors always act in the best interest?

There’s a Commission on Public Ethics in New York that has been a joke for as long as it’s existence. Its predecessor was the same. Maybe right now is the chance for us to go in and fine-tune that process and find something that really works and begin to build back up the trust in government, which is ultimately what we need for the government to be successful, but for New York to be successful, for New York to turn this around and stop being thought of as the embarrassment of what’s happening in terms of the way that state government works.

Allen: Many political leaders, including New York [City] Mayor Bill de Blasio, have said that they think Cuomo should consider stepping down. Do you believe Cuomo’s alleged actions to intentionally hide the accurate number of nursing home deaths is an offense that would require him to step down or maybe even be impeached?

Tim Hoefer: Well, again, I think we’re going to see that process play out.

It probably doesn’t matter too much what I think. I think, ultimately, what matters is what do the people of New York say? That’ll be decided now. It’ll be decided when the investigations come down, or it’ll be decided next year when there’s another election for governor in New York.

Our interest is in making sure … that people have access to exactly the information that’s important and relevant when they begin to make those decisions.

Allen: Mr. Hoefer, thank you so much for your time and thank you for all the work that you all are doing at the Empire Center.

Hoefer: Thank you. Appreciate it.

Allen: And tell us just briefly, how can our listeners follow the work of the Empire Center?

Hoefer: Sure. Our website is empirecenter.org. The transparency website is seethroughny.net. We’d love to have anybody and everybody sign up and get our email.

Allen: Great. Thank you so much for your time.

Hoefer: All right. Take care.

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