March 12, 2021
Case study: Empire Center for Public Policy sheds light on New York’s nursing home catastrophe
Goal: Stop the New York government’s dishonest practice of misreporting coronavirus nursing home deaths and give nursing home residents and their loved ones a voice to hold New York’s leaders accountable.
Results: Thanks to the work of the Empire Center’s team of nine, both the Federal Bureau of Investigation (FBI) and US Attorney’s office in Brooklyn are now investigating Governor Cuomo’s handling of nursing homes during the pandemic. Empire Center is pursuing transparency reforms to eliminate corruption and restore honesty and integrity to state government.
Strategy: After noticing soaring vacancy rates in nursing homes, Empire Center filed a Freedom of Information Law request to give New Yorkers the accurate picture of nursing home deaths that the government was not providing. The data confirmed what had been suspected for months: The document listed the dates and locations of nearly 16,000 deaths involving long-term care residents—six thousand more deaths than the New York government had claimed.
When the pandemic began, Lorry Sullivan hesitated to keep her mother, Lorraine, in Our Lady of Consolation nursing home in West Islip, New York. But the nursing home staff assured her she’d be safer there than at home. Lorry could not visit her mother in the nursing home once Governor Cuomo issued a statewide lockdown in March 2020. She began to lose contact, and staff rarely answered the phones. Lorraine’s health deteriorated. In April, a doctor at Our Lady of Consolation told Lorry her mother was ill, and possibly had the coronavirus. A week later, Lorraine passed away. She died alone, without Lorry or any of her family next to her.
Lorraine is one of nearly 16,000 nursing home residents who died from the coronavirus in New York—one of the highest nursing home death rates in the nation. But up until a few weeks ago, Governor Andrew Cuomo and the New York Department of Health (NYDOH) claimed that number was much lower, at about 9,000 people. Through a comprehensive campaign, the Empire Center for Public Policy, a small think tank in Albany, New York, revealed the Cuomo administration intentionally withheld New York nursing home data to paint a better picture of how many New Yorkers died in nursing homes.
This revelation exploded in the press and has called into question Governor Cuomo’s policies during the pandemic. The New York Governor, once a model for leadership and transparency during the coronavirus, now finds himself engulfed in controversy, a sexual harassment scandal, and calls to resign.
How did Empire—a nine-person organization—hold a powerful governor accountable and stand up for thousands of nursing home residents and their families? To find out, let’s first revisit New York at the start of the pandemic.
New York had become a coronavirus hotspot, and the state struggled to slow the spread. Hospitals and doctors were overwhelmed by the influx of COVID-19 patients. Things worsened in late March, when many health experts warned of a coming surge of coronavirus patients. Healthcare providers realized there weren’t enough beds to treat them.
To ensure these hospitals were prepared to serve the next wave of patients, Governor Cuomo issued an executive order on March 25 requiring the state’s nursing homes to accept coronavirus-positive patients from hospitals, even if they had not fully recovered yet. Doing so would make room for the coming surge of new patients—a surge that never quite materialized.
A day later, a group representing doctors who work in nursing homes expressed concern about the order’s safety, noting “admitting patients with suspected or documented COVID-19 infection represents a clear and present danger to all of the residents of a nursing home.”
As the weeks passed, nursing home deaths climbed. By late April, 3,448 residents of nursing homes or adult-care facilities had died. A few weeks later, that number grew to 5,300. The media, lawmakers, and the families of loved ones who died began to criticize the governor for his March 25 directive. A growing debate ensued over how big a role this policy played in exacerbating the spread of COVID-19 in nursing homes.
After pressure from aides and others, Cuomo rescinded the March 25 order on May 10, 2020. However, the criticism did not fade. Calls grew for an independent investigation into the governor’s coronavirus policies regarding New York nursing homes.
In June, the Empire Center pointed out a soaring vacancy rate in New York nursing homes. Empire argued this suggested the state was not revealing the true death toll of nursing home residents. That number, according to Empire, had to be thousands higher than officially reported. Cuomo and his team pushed back.
The NYDOH released a report that argued most of the infection in nursing homes came from staff and visitors—not from readmitted coronavirus patients. The report noted that the state’s policy of forcing nursing homes to accept coronavirus patients played no role in exacerbating the spread of coronavirus in New York nursing homes. Lawmakers, the media, and Empire highlighted the shortcomings of the report, including the unusual way the Department counted the nursing home deaths.
Unlike every other state, New York only counted people who died in the nursing home itself, not the people who were transferred to and died in a hospital.
At a hearing in August, state lawmakers asked the state health commissioner, Howard Zucker, to release the data that shows how many people died in nursing homes, both in the physical homes and those who later died in hospitals. Zucker said he needed more time to provide accurate data. But many knew, including Empire, the data was already there, the Department was just withholding it.
Early on in the pandemic, New York required nursing homes to file daily reports in the state’s Health Emergency Response Data System, or HERDS. In the reports, nursing homes had to disclose how many residents died in the nursing home itself and how many died outside the homes, or in hospitals. The state was only reporting the answer to one of those questions.
After hearing Zucker’s testimony, the Empire Center filed a Freedom of Information Law (FOIL) request asking for the number of people who died from the coronavirus in nursing homes—both in the physical space and those who later died in hospitals. The NYDOH repeatedly extended the deadline on when they would hand over the data.
On September 18, 2020, Empire filed a lawsuit against the New York Health Department. After the lawsuit sat with a judge for months, a breakthrough occurred in late January 2021 when the Attorney General of New York released a report that found New York undercounted nursing home deaths by 50 percent. The Empire Center sent a letter to the judge in their case and encouraged her to issue a ruling. On February 3, 2021, the judge ruled the NYDOH had violated the FOIL request and ordered the Department to release the nursing home data within five business days. The court also told the NYDOH to pay the Empire Center for all legal fees and court costs.
When Empire finally received the Department’s FOIL response on the evening on February 10, 2021, the data confirmed what Empire had been speculating for months. The department provided the dates and locations of nearly 16,000 deaths involving long-term care residents, including more than 5,000 that occurred in hospitals.
Both the Federal Bureau of Investigation (FBI) and US Attorney’s office in Brooklyn are now investigating Governor Cuomo’s handling of nursing homes during the pandemic.
Over the past few weeks, Empire Center president and CEO Tim Hoefer has been flooded with questions from reporters, lawmakers, and government officials from across the country. Many ask him how surprised he is that the NYDOH deliberately withheld data for nearly eight months. “Anyone who pays attention to what happens in Albany, this is the least surprising thing that has ever happened,” said Hoefer. “This is your standard government operation that has gotten exponentially worse under Cuomo.”
New York consistently ranks as one of the most corrupt states in the country. The State Capitol has been rocked with corruption cases, embezzlement charges, and questionable ethics for the last 10 years. Deal-making behind closed doors is the norm, not the exception.
The nursing home coverup might be the impetus for change New York government needs. Empire exposed the disfunction and unaccountable way Albany works and showed the steep, unnecessary cost of this disfunction: the loss of thousands of lives. There is now an opportunity to change the way state government operates, and Empire is ready to seize on that opportunity, starting with transparency legislation.
“This win is an opportunity to change the culture of the way that New York government works, said Hoefer. “I can’t overstate how big that is.”
Much of Empire’s organizational focus is based on the standard idea that people should have access to their government’s information. When people have access, they can understand how government works and keep it accountable when it’s not serving them.
Empire’s efforts to bring more transparency and accountability to New York government started over a decade ago. They were strategic about the reasoning behind this transparency focus. In an environment like New York, where the politics doesn’t allow for many legislative reform opportunities, Empire realized they could make the biggest impact focusing on transparency issues. And they don’t just post the data on their website and call it a day. Empire’s team is relentless in looking at government data, finding patterns, and connecting the dots. Not many people or organizations take the time to look beyond the surface and tie disparate pieces of information together to form an accurate, larger picture of what actually happened.
By maintaining laser-like focus on this transparency priority, Empire Center built a credible, influential track record of increasing citizens’ access to government information.
In 2015, Empire created SeeThroughNY, a website that gives New Yorkers a clearer view of how their state and local tax dollars are spent. In 2019, Empire exposed rampant overtime fraud in the Metropolitan Transportation Authority (MTA). The unraveling led to a federal investigation and a total overhaul of the MTA’s payroll and overtime policies. Not only did Empire eliminate the fraud and abuse in the overtime system, they saved taxpayers millions and made the system operate more efficiently.
One of the reasons Empire was so successful in this campaign is their strategic focus on building capacities—or the tools and talent an organization can use to advance their mission. Empire used all the tools available to them to keep New York’s government accountable. Their research team provided the analysis and commentary to fact check the Cuomo administration’s misleading statements and issue FOIL requests when necessary. Empire’s communications and outreach teams ensured the media and policymakers were aware of their research and findings at every step of the campaign. And notably, Empire’s litigation arm, the Government Justice Center, gave their ideas traction—especially when the government ignored FOIL requests.
Empire’s entire team was also aligned toward a very specific goal and were all working in concert. These capacities helped Empire execute their strategy more effectively, which in turn helped them give New Yorkers the truth about what really happened in nursing homes. Capacities can help state think tanks have more impact and be even more effective—which will help them better serve the people of their state.
Empire’s development team provided the organization the resources they needed to execute this strategy and hold the government accountable. Empire uses wins like these to show impact to their donors and open the door to new prospects, which helps fuel their next project. These campaigns raise their profile and credibility and help them build an even larger audience.
As we’ve seen with this tragic story in New York, policy can deeply affect people’s lives—right down to their personal health and the wellbeing of families and loved ones. Americans need organizations like Empire that stand up for the average person and hold government accountable when it oversteps. And these are important institutions regardless of which party is in power since corruption can happen on both sides of the aisle.
The families of the 16,000 people who died in nursing homes want and deserve answers on what went wrong. They needed someone to stand up for them—to share their stories—and keep government accountable when it failed. The Empire Center gave those people a voice when it mattered most.
