Media File Lawsuit To Reveal Arizona Nursing Homes That Have COVID-19 Outbreaks

Arizona news organizations are suing the Arizona Department of Health Services to release information about coronavirus cases in nursing homes.

Outbreaks in nursing homes may be the deadliest setting for the pandemic within the state. In Maricopa County, residents of long-term care facilities account for about two-thirds of deaths so far.

Yet state health officials have refused to share the information they collect about which facilities have outbreaks, citing patient privacy.

A growing number of states have already made facility names available, including Minnesota, Oklahoma, North Dakota, New Jersey, California, Ohio, and Florida. But Cara Christ, director of the Arizona Department of Health Services, has said sharing such information would require a court order. Gov. Doug Ducey last week backed up the stance of keeping nursing home names private, telling reporters, “You see them as places. I see them as people.”

The Arizona Republic, ABC15, Channel 12, CBS 5 and 3TV on Tuesday morning filed a special action in Maricopa County Superior Court to obtain that information, arguing the data are a public record. The news organizations said the state hasn’t given a clear basis for keeping secret nursing home outbreaks, and that it can’t rely on “global generalities” or “blanket rules” to withhold public records.

“Their only apparent, current basis for concealing the information is Director Christ’s broad references to privacy interests under state law – as if disclosure of the numbers of the COVID-19 positive population at nursing homes would reveal the identity of residents who have tested positive – and the confidentiality of individualized health information,” the court filing said.

As the media lawsuit was being filed in court Tuesday morning, the state issued a new letter with rationale for refusing to the records.

“While ADHS appreciates your request and shares your priority of transparency, we also have overarching legal and public health responsibilities, including a responsibility to protect the privacy of Arizonans’ health-related data,” Administrative Counsel Robert Lane wrote.

He cited a state law that makes secret all communicable disease-related information collected “in the course of providing a health service” or obtained from health care providers “pursuant to an authorization.”

The state already releases data daily on a dozen different aspects of coronavirus cases, including the home ZIP codes of people with positive tests.

The news organizations do not seek to identify individuals and argued that it would be extremely difficult to do so because of the number of people who are sick.

The vast majority of Arizona’s nursing homes that participate in Medicaid or Medicare programs have at least 50 beds. None of them has fewer than 19.

About a month ago, Gov. Doug Ducey signed an executive order requiring nursing homes to file weekly reports to the state that detail the number of COVID-19-positive residents, transfers to and from hospitals, the number and of type of personal protective equipment and the estimated use of that equipment.

The Republic and other news organizations had filed a variety of requests for that information.

Advocates for people who live in long-term care facilities and their families have asked states to be more transparent about coronavirus cases and questioned the motives for withholding nursing home names.

Dana Marie Kennedy, state director of AARP Arizona, said the public doesn’t know the full extent of the outbreaks without facility names.

Kennedy said disclosing facility names would help families make informed decisions about whether to move their relatives if the facility had a COVID-19 outbreak. Families who are worried about COVID-19 could also feel reassured if the facility where their loved ones live isn’t on the list.

Brian Lee, executive director of Families for Better Care, said it looks like the state is protecting the business interests of the long-term care industry at the expense of families who need this information.

“The failure by state officials to be transparent with this data frustrates families. It causes more anxieties. It causes more confusion,” Lee said. “And at the end of the day, you’re left pondering, ‘Who do they really care about here?’ They have this data. They’ve decided to hold it close to the vest. And there must be an underlying reason as to why they’re doing it.”

He pointed out that Arizona is one of several states to recently make it more difficult to sue long-term care facilities for problems during the pandemic, saying the state’s actions seem like “cronyism.”

The Associated Press recently reported as many as 11,000 deaths nationwide among nursing home residents.

In Arizona, the information that has surfaced has suggested that long-term care facilities have been hard hit by the coronavirus. Maricopa County alone has 119 long-term care facilities that reported at least one or more cases as of Monday, though the county also has refused to release facility names.

An Arizona Republic analysis found that ZIP codes with nursing homes had higher rates of infection than those without, both on average and by median.

One Tucson nursing home alone, Sapphire Nursing Home and Rehab, saw its COVID-19 cases more than double within the last month with 60 residents and 30 staffers infected as well as reports of multiple deaths. Two nursing homes in Chandler, Pennington Gardens and Desert Cove Nursing Center, also have reported multiple cases and deaths.

“How many body bags do we have to see being carried out of nursing homes before they start ponying up this information, they start being transparent and just being honest?” Lee said. “The longer this virus lingers in these facilities, it’s going to show the recklessness of this policy decision to shroud this information.”

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