State fights disclosures
Naming nursing homes with new coronavirus outbreaks would hurt their business, the Arizona Department of Health Services argues.
The Arizona Department of Health Services made a new argument Friday to justify denying the public access to information about coronavirus cases inside nursing homes: Naming facilities with outbreaks would hurt business.
If the public knew which facilities have outbreaks, people associated with those facilities might be discriminated against and struggle to obtain goods or services. Disclosure could also harm “possibly even their residents” because the stigma could interfere with care.
To bolster its argument, the state cited Hacienda HealthCare’s struggle with negative publicity after a former nurse there was accused of raping and impregnating an incapacitated patient.
Police arrested the man in January 2019, alleging the baby’s DNA matched his.
The case has yet to go to trial. “Because of publicity ... multiple directors of nursing homes resigned, and Hacienda experienced significant turnover among middle and upper management,” the state said in the court filing.
The state went on to explain that Hacienda had trouble meeting staffing needs, removed building and vehicle signage, hired off-duty police officers to provide security and installed a new security system.
“These issues threatened the facility’s viability, caused significant problems obtaining adequate insurance, and eventually forced Hacienda to close the skilled nursing portion of its operation due to financial problems,” the state said.
In turn residents had to relocate, which causes trauma, the state argued.
Long-term care facilities are the deadliest setting of the pandemic in Arizona, accounting for more than half of the known deaths statewide from COVID-19. In Maricopa County, nearly two-thirds of deaths from the new coronavirus are residents of such facilities.
But state health officials have refused to share which facilities are having outbreaks.
The Arizona Republic and other local news organizations are suing to bring that information to light, along with other information such as hospitalizations and the use of personal protective equipment.
AARP has also pressed Gov. Doug Ducey to make the data public.
Many other states have shared such information. And the federal government plans to publish nursing-homelevel data on coronavirus cases by the end of the month.
The Centers for Medicare & Medicaid Services said the providing the information may “inform residents, families, and communities of the status of COVID-19 infections in their area.”
“Reporting COVID-19 data supports CMS’s responsibility to protect and ensure the health and safety of residents and is necessary to ensure the appropriate tracking, response, and mitigation of the spread and impact of COVID-19 on our most vulnerable citizens, personnel who care for them, and the general public,” CMS wrote in a memo last week.
But the state argued Friday in its response to the news organizations’ lawsuit that state laws make communicable disease-related information confidential and that sharing information at the nursing home-level would risk identifying individual patients. The state’s bureau chief for public health statistics cited a study in which researchers were able to identify individuals by cross-referencing anonymized health datasets with newspaper articles about hospital visits.
The news organizations do not seek personally identifiable information, and it is the state’s responsibility to redact such details, said David Bodney, the attorney representing the news organizations.
Not only do they have no intention of identifying people, it would be extremely difficult to do so. The vast majority of Arizona’s nursing homes that participate in Medicaid or Medicare programs have at least 50 beds. None has fewer than 19 beds.
Reporters seek the data to hold accountable government officials and the industry serving a population that’s most affected by the new coronavirus.
The state’s newest argument to keep the data secret invokes a law that says information collected “during a surveillance advisory” should be kept private if it is likely to cause “substantial harm to the person’s or business’ competitive position.”
“Public disclosure of the name or address of a congregate setting could lead to discrimination, stigmatization, retaliation, societal exclusion, and safety threats against all concerned,” the state’s filing says.
The state argued that disclosing the records will “reveal the names and other information of applicants or employers for no legitimate reason.”
But, Bodney said, “What could be more legitimate than determining whether the residential facility of a loved one is safe?”
Ducey recently ordered that nursing homes must disclose to residents or perspective residents if they have coronavirus cases.
Bodney said during a hearing last week that the state’s public records law is not designed to work for only some people and not others. Otherwise it would burden families shopping for a safe facility, as they might have to pay application fees to learn whether facilities have coronavirus outbreaks, he said.
“Does it really mean that you have to go from nursing home to nursing home to nursing home to find out which ones are going to the safest for your loved one?” he said.
The news organizations will file a response to the state next week. A hearing is scheduled for May 27.