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Arizona invokes Hacienda rape case as reason to withhold COVID-19 data

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Posted at 6:23 PM, May 18, 2020
and last updated 2020-05-19 00:01:12-04

PHOENIX — The state’s use of the Hacienda rape case as a legal argument to withhold coronavirus data for long-term care facilities stands in direct opposition to Governor Doug Ducey’s and other top officials’ past positions on the embattled facility.

In response to a lawsuit filed by multiple news organizations, Arizona’s hired attorneys argued that releasing the names and locations of facilities with COVID-19 outbreaks would harm businesses’ competitive positions.

They used the publicity resulting from the rape and impregnation of an incapacitated patient at Hacienda as an example.

“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’s attorneys wrote in their response to the media’s lawsuit.

But an ABC15 review of past comments and documents from Governor Doug Ducey and the Arizona Department of Health Services directly contradict much of the blame the state’s is now directing at the media.

Some of the arguments and facts supporting them are also incomplete and misleading.

“That’s just not a good comparison at all, and it’s just alarming they even went there,” said Dana Kennedy, state director for AARP Arizona, who has also pushed the Governor’s Office to release more long-term care data.

“(Arizona’s) fighting the wrong fight,” Kennedy said. “In times of crisis you need better communication, not less communication.”

Governor Doug Ducey and health department director Dr. Cara Christ have repeatedly refused to identify long-term care facilities with outbreaks by citing various state and federal privacy laws.

The state has hired two outside law firms to fight against the release of the information.

In an 18-page response filed Friday, Arizona’s attorneys based arguments on a declaration filed by Colby Bower, the health department’s assistant director.

Bower made multiple statements about how he believe media coverage was responsible for setbacks suffered by Hacienda.

“For example, Hacienda HealthCare experienced significant turnover and safety threats as a result of the negative publicity surrounding the facility in late 2018 and into 2019,” he wrote. “Multiple directors of nursing resigned, and Hacienda experienced significant turnover among middle and upper management.”

However, the declaration doesn’t include past public comments made by Ducey who specifically called for the mass firing of Hacienda leadership.

“It’s time for their entire leadership team to be replaced,” Ducey told reporters on Jan. 25, 2019. “And I think their board of directors should be terminated.”

Bower later alleges that Hacienda experienced significant hostility and safety threats as a result of the news coverage and generically cites a shooting on the facility’s property.

“There was even a shooting in Hacienda’s parking lot,” he wrote.

The shooting had no connection to the rape case or media coverage. Police said on March 11, 2019, a man confronted his ex-wife who worked at Hacienda.

The man had a gun and was standing over the woman as she was on the ground. Police providing security at Hacienda intervened and shot the man.

Bower also said the issues threatened Hacienda’s viability.

“Hacienda had significant problems obtaining adequate insurance, and it eventually closed the skilled nursing portion of its operation due to financial problems,” he wrote.

But ADHS inspectors repeatedly cited the facility for failures in care after the rape case was exposed. The state also threatened to revoke Hacienda’s license.

In public statements, the department called the facility’s issues “extremely disturbing” and “inadequate.”

As part of the process to get Hacienda into compliance, Governor Ducey also sent a letter to Arizona Attorney General Mark Brnovich seeking an investigation and prosecution.

The governor’s letter also cited “published reports” about Hacienda’s CEO and allegations of sexual harassment.

“I urge you to exercise your authority under (state law) to initiate and prosecute a complaint under the Adult Protective Services Act against Hacienda HealthCare and its government body for their actions or lack thereof in retaliation to the rape of a patient, it’s staff’s failure to notice that the patient became pregnant prior to the birth of her child, and any other actions that constitute violations of the act,” Ducey wrote on February 5, 2019.

Residents of long-term care facilities make up the majority of deaths in the Valley, according to overall numbers released by Maricopa County.

Currently, more than 72% of deaths involve Valley LTC residents.

Across the nation, many 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.

The White House also announced that the federal government will release later this month the names and number of cases for skilled nursing centers, a specific type of long-term care facility.

The Governor’s Office didn’t respond to requests for comment.

The Arizona Department of Health Services issued a statement:

“The horrific events that unfolded at Hacienda were tragic, and the Department took significant action to hold the facility accountable. Our brief in the pending lawsuit makes that point very clear, our focus is not defending any misconduct by the operators of these facilities, but ensuring they can adequately protect the health and safety of the residents who live at those facilities.”

Contact ABC15 Investigator Dave Biscobing at Dave@ABC15.com