Why is the Ducey Administration Hiding COVID Infections in Nursing Homes and Prisons Behind Privacy Claims?

Governor Ducey and his Health Department Director, Dr. Cara Christ continue to refuse to publicly release any data on nursing homes and prisons that have had diagnoses of COVID19 and consequent deaths. Maricopa County’s health director Sunenshine has also refused to release the information. News agencies have submitted final demands and are preparing for litigation.

Deaths and infections are rising is congregate living facilities such as nursing homes and prisons across the state. It is estimated that 40-60% of COVID19 deaths are occurring in such facilities. Yet, there is no systemic program for testing the staff and residents of such facilities. Instead, the Governor is on a PR campaign to convince the public that anyone who wishes can be tested. This is a tremendous waste of limited resources that should be directed at those most vulnerable to infection and consequent death from the virus.

The Ducey Administration has repeatedly claimed that their lack of disclosure of this health data to the public is compelled by medical privacy laws, despite pushback on those claims from the media, medical privacy experts, and legal experts.

Here is a 4/29/20 press conference in which the subject is again raised starting at 1:11:45:

In this press conference, Dr. Christ admitted that the legal interpretation she is relying on is not based on HIPAA (the Federal medical privacy law, which does not prevent the release of the addresses of infected patients), but on interpretation of unspecified state law or laws. She states, “It is state law. It is not HIPAA.”

When challenged whether she is suggesting that media sue for the information, she claims she will only release the information if a judge disagrees with her interpretation. That sounds like a request to be sued, to me.

As to releasing information regarding infection and/or death of inmates and corrections officers, Ducey didn’t even try to justify his Administration’s secrecy, merely claiming that he is following CDC guidance, and not announcing any policy to get those prisoners and staff tested proactively.

Ducey later says of his medical information release policy, “We are informing them [meaning next of kin], not the media.”

There is nothing I can find in Arizona medical privacy law that justifies the government in withholding the addresses of Long Term Care (LTC) facilities with active COVID19 cases from the public in a health crisis such as we are now experiencing. Investigative reporter Dave Biscobing interviewed a number of experts on Arizona and Federal medical privacy law, and they could not find justification for the Administration’s position either.

Arizona’s confidentiality law related to infectious disease specifically incorporates HIPAA regarding release of patient information. As previously stated, HIPAA does not prevent the release of location data to protect public health. State law allows the release of personally identifying information, such as an address, pursuant to a release authorization, which the DHS could request of infected patients. Are they requesting such authorizations from patients?

DHS can also release information to any “contact” (a person who may be exposed to the disease), which in this case is anyone who shares housing with an infected person, or works in the facility. The law requires that disclosure to a contact not “identify” the infected person; an address shared by multiple persons does not “identify” the protected person.

I wonder if the DHS is actually sending every resident and worker in a LTC with a COVID19 infection a personal notification? Somehow, I doubt this very much. The most efficient and swift manner of providing disclosure to all “contacts” is to publish the addresses of LTC facilities with positive COVID19 cases. But they refuse to do that.

It seems very likely that whatever interpretation the Administration is relying upon to refuse to release this data to the public is simply wrong or, at best, tendentious. At the very least, DHS should made public any legal opinion on which they are relying to deny this information to the public.

The best I can make of this whole fetish for “confidentiality” is that the the Administration is under pressure from the LTC industry not to publicly release facility addresses for fear that families might pull their elders out of the system if they learned that the facilities in which their loved ones are living are rife with COVID19. A profit motive likely lies at the bottom of this mystery, as it does most mysteries.

As to LTC facilities, I believe that the Ducey Administration is simply placing the interests of the industry over that of the public, and the citizens living in those facilities.

As to prisons, I believe that Ducey just wants to avoid the bad optics of prisoners and staff sickening and dying on his watch while he does little to nothing to prevent it.