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Media sue state to get information on virus in nursing homes

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Several media organizations are going to court to challenge the refusal of the Department of Health Services to tell the public how many residents of individual nursing homes are becoming ill with COVID-19.

The lawsuit filed Tuesday in Maricopa County Superior Court charges that the agency has the records that identify at which state-regulated sites, including assisted living centers and long-term care facilities, residents are becoming ill. Instead, the agency is releasing only information about the number of facilities in each county where the virus has shown up, claiming anything more would be a breach of personal information.

But attorney David Bodney, representing the plaintiffs, pointed out that none of the records requested seek information about individuals. And he said that state health officials could redact specific information if, somehow, identifying a specific nursing home or other institution might lead someone to learn an individual’s identity.

The lawsuit comes as the Department of Health Services — and Gov. Doug Ducey — are under increasing pressure to provide more transparency about the number of people in these state-regulated settings who are ill, with multiple reports that some facilities have had outbreaks spread among the residents.

On Monday, Ducey moved to address the issue.

Gov. Doug Ducey discusses COVID-19 and the state's response at a press conference last week. (Capitol Media Services photo by Howard Fischer)

Gov. Doug Ducey discusses COVID-19 and the state’s response at a press conference last week. (Capitol Media Services photo by Howard Fischer)

“We want to test everyone inside our long-term care facilities,” the governor said. “We’re going to increase the testing and prioritize our vulnerable population and staff within congregate settings.”

And Ducey, after being questioned for weeks about the issue of public knowledge, finally signed an executive order on Monday to provide some information — but not to everyone.

Instead, the governor said that anyone with a relative in one of these facilities who comes down with the virus would be notified, as would someone in a facility where others tested positive. And he said that anyone seeking to place a relative in a facility is entitled to know what is the COVID-19 situation there.

But Ducey’s executive order specifically prohibits anyone who gets the information from disclosing it to anyone else. And all efforts by the media to get information about infection rates at these facilities has been rebuffed.

State Health Director Cara Christ initially argued that release of the information would violate the federal Health Insurance Portability and Accountability Act. But Christ appears to have abandoned that after multiple other states began providing the same information and Dana Kennedy, state director of AARP, pointed out that those rules apply only to employers and health care institutions and not to public health agencies like DHS.

Now Robert Lane, the agency’s administrative counsel, is arguing the information is protected under state law.

“Even if the information you seek is a ‘public record’ under Arizona law — privacy, confidentiality, safety, public health, the state’s general responsibility to protect all Arizonans, and other overriding interests outweigh any public interest in disclosure of the information you requested,” he wrote Tuesday in a response to a request by Capitol Media Services.

Lane cited specific state statutes he said prohibit disclosure of “communicable disease related information” and another law he said that medical information that might identify an individual is “confidential and is not available to the public.”

And he said those laws are supported by a state constitutional provision that protects the right of privacy.

But Bodney, in his legal filings, said the information requested is simply what Ducey himself ordered nursing homes and other long-term care facilities to provide to the health department: the number of COVID-19 positive residents, the number of transfers to and from acute care hospitals, the number and type of personal protective equipment, and the estimated use of each type of PPE per week.

None of that, Bodney said, would identify any resident. Conversely, he said, there is a public benefit to releasing the information — and not only to those who have relatives in these facilities or are considering moving them into one.

“Disclosure, too, will allow the public and public policymakers to reach more informed judgment about the containment of this public health crisis in Arizona,” Bodney wrote on behalf of the Arizona Republic and Phoenix TV channels 3, 5, 12 and 15.

The health department has set up a “dashboard” of information about the virus.

But the only data available on congregate care settings goes to the number of facilities with positive cases. The most recent posting shows a total of 208 different facilities that fit that category, led by 79 assisted living facilities and 44 long-term care facilities.

Of that 208 total, 131 are in Maricopa County, with 52 in Pima and 10 in Pinal, though that last group of facilities might also include state prisons.

Cochise and Mohave counties each have four facilities with COVID-19 outbreaks, with three in Yavapai, two in Navajo and one each in Yuma and La Paz counties.

Other data point to the effect on the elderly: While those 65 and older make up about 23.5 percent of the 9,305 cases reported so far, they also account for 308 of the 345 deaths in the state, with that tally having gone up by 33 just on Tuesday.

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