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Officials avoid questions over long-term care facilities as experts push back on release of data

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Posted at 6:24 PM, Apr 29, 2020
and last updated 2020-04-29 22:29:21-04

PHOENIX — Governor Doug Ducey and Arizona Health Department Director Dr. Cara Christ shut down a press conference Wednesday and walked away after fielding tense questions about why the state is withholding the names and locations of long-term care facilities with COVID-19 cases.

The state leaders maintain that is private health information despite push back from top legal experts, health privacy researchers, and elder advocates.

Ducey and Christ did not directly respond to final questions from reporters about whether people with loved ones in facilities have the right to know this information.

“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."

The state has refused to release the name and locations of long-term facilities to ABC15 and other media outlets for weeks.

It’s an unlawful denial of vital public information, according to multiple top experts in public records and health privacy laws.

“It is in the public interest to have this kind of basic raw data to assess how we are doing,” said David Bodney, an internationally recognized attorney who represents media outlets in public record disputes.

ABC15 has issued a final demand to the Governor’s Office, Department of Health Services, and Department of Corrections to produce requested records related to long-term care facilities and prisons by the close of business on Thursday.

If the state agencies fail or refuse, the station will examine its legal options to compel the public release of the information.

A similar demand was made to Maricopa County, which is refusing to name facilities names and locations but is providing broad numbers about cases.

Long-term care facilities account for the majority of COVID-19 deaths in the Valley — 62 percent. Over the last day, all five deaths reported in Maricopa County were residents of long-term care facilities.

The risk and danger of an outbreak inside those facilities can’t be overstated, according to advocates and experts.

On Wednesday, AARP Arizona also released a letter it sent to Governor Ducey urging him to have his health department release names and locations of facilities.

The Governor had previously deferred to Christ on the matter. She has repeatedly maintained 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.

The names and locations of facilities would not only warn and inform the public about the size and scope of outbreaks, it would allow the public to evaluate the care homes and state’s oversight as a whole.

Outbreaks could be compared to a facility’s history of issues before the pandemic and whether they were cited for infection control issues and other violations.

It would also show whether the state health department effectively oversaw and inspected facilities before the outbreak.

According to a 2019 state audit, the health department failed to properly and timely investigate many complaints and violations inside long-term care facilities. Auditors raised concerns that the state put residents at risk.

ABC15 has also exposed problems with the state’s inspection process. Specifically, Arizona failed to hold itself accountable after a 2019 homicide inside its own state hospital.

In press conferences, Ducey and Christ have said that residents and families will be notified about COVID-19 cases in long-term care facilities. However, their comments have been carefully worded.

“I want you to know that if you have a loved one in one of these nursing homes and they contract COVID-19, you will be notified immediately of that fact,” Ducey said on April 22.

ABC15 has discovered and clarified that doesn’t necessarily mean other residents in those facilities, their families, or the community will be notified.

“The real fear, if I were the government, is that I don’t give the information to you, you find out later that I withheld the information, and it could have saved a life,” said Pamela Marsh, president of the Florida First Amendment Foundation.

Similarly, the Arizona Department of Corrections has refused to provide the number of COVID-19 positive staff in their prisons and where they work.

The state also maintains that is private health information.

It’s a position that experts find comical and ridiculous.

“That information is not only available. It obviously necessary,” said Dan Barr, a long-time public records attorney. “The coronavirus doesn’t discriminate whether you are in custody or a detention officer. If your officers are infected, they are leaving the prisons and endangering their family’s members and other people. It’s a danger to society in general.”

Contact ABC15 Investigator Dave Biscobing at Dave@ABC15.com.