New York state’s health commissioner struggled to answer a simple question during a legislative hearing last week: Why does New York have such a strange way of counting nursing home deaths from Covid-19?

During an August 3 hearing, New York state legislators questioned Dr. Howard Zucker about what went wrong with the approach by Governor Andrew Cuomo’s administration to addressing and controlling coronavirus outbreaks among nursing home residents, including why the administration counted nursing home residents who died in hospitals separately from residents who died in their nursing homes.

“It seems, sir, that you are trying to do it one way so you can look better,” said Gustavo Rivera, a Democrat who chairs the state Senate’s Health Committee.

New York is the only state to count those deaths separately during the pandemic, according to findings from the Democrat-controlled state Senate. And the decision to do so has made assessing the devastation Covid-19 wreaked on the state’s nursing homes (as on such facilities across the nation, with New York’s being hit especially hard) incredibly challenging, because many residents who got sick from Covid-19 were, naturally, sent to hospitals for medical attention.

Zucker admitted during the August 3 hearing that reconciling the deaths in nursing homes with the deaths of nursing home residents in hospitals might not be possible. New York state still counts hospital and in-residence deaths of nursing home residences separately. Despite the state’s artificially low count, New York’s in-residence nursing home death toll remains the highest in the country—more than 6,400 people, according to state data—though not the highest per capita. New York state also has the highest overall number of coronavirus deaths in the United States, more than 25,000 Covid-confirmed fatalities, according to the New York State Department of Health.

During the hearing, state Senator James Skoufis, another Democrat, also pressed Zucker on the total number of deaths of nursing home residents: “You don’t have a ballpark you can give? So the total official number is 6,500, so is the total deaths with hospitals included 8,000, 10,000, 15,000?”

“I am not prepared to give you a specific number,” Zucker responded. New York had decided not to count nursing home residents who died in hospitals, he said, because state officials feared they could double-count deaths—that is, record that a person died in a hospital and also in a residence.

Difficulty establishing a clear case and fatality count extends beyond nursing homes; New York is not alone in that. “Probable” and “confirmed” are two public health statistics used to track, for example, Covid-19 cases and deaths. New York State’s probable number of deaths, according to The City, is more than 32,000, as of August 7. The state has reported a confirmed 25,000 deaths; it has not reported the probable number of deaths.

Cuomo has demanded privately that the Centers for Disease Control not report New York City’s probable count and use the state government’s confirmed tally instead, according to a state source familiar with the situation. Currently, the CDC does not list either a statewide “probable” or “confirmed” tally on its website for New York and many other states, including Texas, Florida, and California.

Accurate case and death counts matter because they can be used to examine whether state policy played a role in exacerbating the crisis—and Cuomo’s directive, issued in a time of extreme distress, warrants examination, given how nursing homes have been ravaged during the pandemic. Such examination could help New York respond better in a second wave.

On March 25, the New York State Department of Health ordered homes and facilities to readmit residents who had tested positive for the coronavirus, in part to ensure that hospitals had enough capacity for new patients. Cuomo reversed course in May and rescinded the directive, which some have blamed for contributing to the spread of the virus in nursing homes.

In addition, Cuomo gave nursing homes and hospitals blanket immunity from virtually any kind of medical malpractice lawsuits when the state budget was passed in April. In late July, the state legislature passed a bill to partially repeal the immunity. In a victory for executives of both nursing homes and hospitals, two of the most influential interest groups in New York politics, the repeal is not retroactive, meaning those who lost family members in health care facilities before August still can’t sue.

On July 6, as criticism of Cuomo’s handling of Covid in nursing homes and of the pandemic in general mounted, the State Department of Health released a report, aided by the consulting firm McKinsey & Co., that determined the state wasn’t to blame for these deaths. The July report declared that the controversial March directive had nothing to do with the spread of the coronavirus and instead blamed staff working in the homes for unwittingly transmitting it to residents.

The report’s data showed that nursing home deaths peaked a week before readmissions of patients who had tested positive for Covid-19 peaked. The height of infections of staff similarly tracked with peak mortality for residents, according to the report, with deaths peaking on April 8. Because the time from infection to death ranges between 18 and 25 days, the report argues that residents were likely infected by staff in mid-March, before the March 25 directive that forced nursing homes to readmit coronavirus patients.

Outside health care analysts, scientists, and epidemiologists largely assailed the report for its methodology. The report proclaimed that 80 percent of nursing homes that accepted coronavirus patients already had confirmed cases before the March 25 order—but didn’t address the other 20 percent. The question state lawmakers are seeking to answer is, did readmitted residents spread the coronavirus there? The Cuomo administration has repeatedly refused to say.

If infected residents who were transferred to hospitals to die were excluded, how could the Department of Health definitively know that peak mortality came on April 8?

“If you’re not counting those people, you’re not seeing the whole picture,” said Bill Hammond, the director of health policy at the Empire Center, a right-leaning think tank. “It’s shocking to me, in context of what’s supposed to be a scientific fact-based analysis, that [the DOH report] continues to lowball the number of deaths.”

A spokesman for the Department of Health, Jeffrey Hammond (unrelated to Bill Hammond), said that protecting vulnerable populations has been the state’s “top priority” from the start. Referring to the McKinsey report, Hammond insisted that nursing home staff carrying the coronavirus into health care facilities was the sole cause of outbreaks there. “The Department of Health released the results of an in-depth analysis of nursing home data that found Covid-19 fatalities in nursing homes were related to infected nursing home staff.”

The hearing was the first of two scheduled to investigate the administration’s approach to Covid-19 in nursing homes. The second is August 10.

In May, two months before the McKinsey report was released, the Cuomo administration and the New York state attorney general’s office announced that they would be conducting their own nursing home investigation. The investigation remains ongoing, with no new updates. Both Democratic and Republican state lawmakers, however, are hoping for an outside, independent investigation, though it’s not clear yet what form it would take.