Arizona Judge Rules Against Releasing Nursing Home COVID-19 Stats

June 1, 2020

The state of Arizona doesn’t have to publicly reveal the number of coronavirus cases and deaths among residents of nursing homes, long-term facilities and retirement homes, a state judge ruled on Friday.

The ruling marked a loss for news organizations that had sued to get the information. Judge Christopher A. Coury sided with the administration of Republican Gov. Doug Ducey, which had argued the information is private under several state provisions. The lawsuit was filed May 5 against the state’s department of health.

The news organizations weren’t seeking individuals’ confidential health records. They sought weekly updates on the number of residents in such facilities who have been transferred to or from an acute care facility, along with information regarding the availability of personal protective equipment. Coury did not rule on the plaintiffs’ request to know how much personal protective equipment is available, setting a future court date instead.

The victory by the state doesn’t mean the public won’t be able to learn about nursing home outbreaks, however. That’s because earlier this month the federal Centers for Medicare and Medicaid Services ordered nursing homes to report infections to the Centers for Disease Control and Prevention.

“As nursing homes report this data to the CDC, we will be taking swift action and publicly posting this information so all Americans have access to accurate and timely information on COVID-19 in nursing homes,” the agency said in a May 7 news release.

The Arizona Department of Public Health, the main defendant in the lawsuit, has not responded to a request for comment.

David J. Bodney, an attorney for the news organizations, said in a statement that the news groups “believe strongly in the public’s right to know the information that ADHS is concealing from view.”

“We see no possible overriding interest in the nursing home business that requires confidentiality of this information, especially during this pandemic. We’ll confer with our clients and consider appropriate next steps.”

Lawyers for the state argued the information is confidential under several laws, including one barring the release of information during a pandemic that would likely substantially harm a business’ competitive position. They also cite an Arizona law that makes information related to communicable diseases private.

Dr. Cara Christ, the state’s top public health official, has previously said she wouldn’t release the information without a court order, explaining that disclosing the locations of the positive cases and deaths would in effect be revealing the addresses of nursing home residents.

While the state refuses to release the information, a few nursing homes have confirmed to news organizations the number of COVID-19 cases and deaths among its residents.

Maricopa County also has reported that more than 280 residents in long-care facilities _ which includes nursing homes, assisted living and hospice _ have died from the virus, accounting for about 70% of COVID-19 deaths in metro Phoenix.

For most people, the coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia, and death.

The lawsuit was filed by The Arizona Republic, 12 News (KPNX-TV), CBS 5 (KPHO-TV), (KTVK) and ABC15 (KNXV-TV) against the Arizona Department of Health Services and Christ, the agency’s director.

Even though the news organizations haven’t asked for the names of nursing home residents, lawyers for the state argue residents could still be identified if the information were provided to news organizations.

The news organizations said the state has misrepresented the content of the public records requests by claiming they were seeking the identities of residents and said the state always has the option of redacting sensitive information before releasing records.

The news organizations said the state is taking an overly broader interpretation of state laws in order to prevent the information from being released.

The state argued disclosing the information would conflict with the Department of Health Services’ policy of promoting trust among its community partners and may lead to stigmatization against nursing homes.

The state’s lawyers cited staffing difficulties and other problems that resulted from unfavorable publicity that a long-term care facility in Phoenix received after one of its nurses was charged with sexually assaulting an incapacitated 29-year-old woman who later gave birth at the facility.

The news organizations said the state has offered no evidence showing that releasing the nursing home information would inspire the sort of negative reaction that the long-term care facility faced.

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