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ABC15, Valley media sue for release of long-term care facility COVID-19 information

Arizona Governor Doug Ducey and Dr. Cara Christ
Posted at 11:10 AM, May 05, 2020
and last updated 2020-05-06 22:16:37-04

A collection of news organizations, including ABC15 Arizona, is suing the state health department in order to reveal Arizona long-term care facilities with COVID-19 outbreaks.

On Tuesday, ABC15, the Arizona Republic, 12 News, CBS5, and 3TV filed a joint action in Maricopa County Superior Court to obtain the names and locations of facilities with coronavirus cases and deaths.

The Valley media outlets are represented by David Bodney, a long-time First Amendment attorney.

“There is no basis I can see for withholding numbers and locations of COVID-19 incidents from the public,” Bodney told ABC15 in a previous interview. “It’s not only counter to Arizona public records law, it’s contrary to good policy. It really undercuts the public’s right to know in a very fundamental way what its government is up to.”

The Arizona Department of Health Services has repeatedly refused to release the names and locations of long-term care facilities. The department hired outside legal counsel, attorneys Greg Falls and Craig Morgan, to represent them and fight release of the information.

On Tuesday, officials sent a final denial letter in response to ABC15’s public record requests.

Officials believe releasing the information is a violation of state law and wrote it would have a “chilling effect on reporting and ADHS’s ability to control outbreaks of communicable diseases.”

But sources, families, and even some facilities’ management teams have confirmed large-scale outbreaks inside their centers to media outlets.

Residents of long-term care facilities make up the majority of deaths in the Valley, according to overall numbers released by Maricopa County. Across the nation, other states have released the names and locations of the facilities because of the increased risk that COVID-19 poses to residents and the surrounding communities.

“I think in this time we need more communication, not less,” said Dana Kennedy, director of Arizona’s AARP, which has strongly pushed against the state’s refusal to provide facility names and locations. “We need to put families before facilities.”

AARP sent a detailed letter to the state outlining why the organization believes there is nothing in state or federal law that prevents disclosure.

But on numerous occasions, Director Dr. Cara Christ and Governor Doug Ducey have stated they will not release the information. Ducey has deferred to Christ on the matter. She maintains that releasing facility names and locations would violate health privacy laws.

“The address where someone would live would be protected health information,” Christ said on April 14.

Last week, questions intensified on the subject, causing Ducey to shut down a press conference after reporters pressed whether people with loved ones in facilities have a right to know.

“That is the question, that is the answer, and that will have to satisfy it for today,” Ducey said as he and Christ got up and exited the press conference. “We will be back soon."

Arizona has a failed history of inspecting long-term care facilities and investigating complaints and self-reports, accord to a 2019 state audit.

The state incorrectly told auditors that it wasn’t necessary to investigate when facilities self-reported abuse, injuries, and deaths. As a result, inspectors ignored many serious issues, the audit found.

In a sample of cases, auditors found ADHS classified 36 of 37 facility self-reports as “no action necessary.”

“For example, one 'no action necessary' self-report was closed on the same day it was reported to the Department and involved allegations that a resident with ambulatory issues was being thrown around like a 'rag doll' by a staff member,” the audit stated.

In a sample of cases, auditors found ADHS classified 36 of 37 facility self-reports as “no action necessary.”

Auditors discovered the number of overlooked cases was significant.

Pamela Marsh, a former U.S. Attorney and current president of the Florida First Amendment Foundation, said Arizona’s reluctance to provide the information is disappointing but not surprising given the elder-care industry’s strong lobbying efforts.

“Here in Florida, the assisted living, elder care lobby is very strong. They’ve even asked the governor to give them immunity after this is all over,” said Marsh, who worked with media to pry open similar long-term care facility data in her state. “You may be dealing with a very powerful, very profitable, corporate business. And that may be what they are trying to protect.”

The Arizona Department of Corrections has also refused to release the number of staff who have self-reported COVID-19 cases by specific prison locations.

The department, with the backing of the Governor’s Office, has generally cited unspecific state and federal privacy laws.

Corrections officials have not responded in any way to a final request from ABC15 for the data.

However, on Friday after ABC15 attorneys contacted the state, the department did release overall numbers for infected staff — 47 positive cases.

Contact ABC15 Investigator Dave Biscobing at