Virginia Health Commissioner Dr. Norm Oliver, flanked by Gov. Ralph Northam, left, and Secretary of Health Dr, Daniel Carey, right, at a news conference on Capitol Square in last year. (Ned Oliver/Virginia Mercury)
They are simple questions and they deserve honest answers, especially when people’s lives are at stake.
What nursing homes have reported COVID-19 outbreaks? Are there outbreaks at food processing plants in Virginia, and where are they? What do Virginia taxpayers have to show for their $27 million contract to buy personal protective equipment for health care professionals?
Even in ordinary times, reporters have a duty to ask those questions of government and insist on complete answers. These are the most extraordinary times in the memory of anyone alive today and people desperately need candor and transparency from their government to make the best decisions for themselves and their loved ones.
Virginia’s government is establishing a regrettable pattern of withholding a wide range of vital and relevant information about the coronavirus outbreak from its people and the press during a public health emergency so dire that it has halted businesses, frozen livelihoods and ordered home sequestrations for months.
Yet even in the face of a crisis that has turned nursing homes into charnel houses, refrigerator trucks into makeshift overflow morgues and made mass graves dug by backhoes a reality, the state’s leaders are delaying and denying requests for essential statewide data, citing a specious and selective interpretation of a state law.
Each Monday, Wednesday and Friday, Gov. Ralph Northam holds televised afternoon briefings where he occasionally announces broad strokes of new initiatives as he did last week when he extended his order closing such “non-essential” businesses as hair salons, theaters and dine-in restaurants for an additional 15 days, until May 8. Supporting detail is usually scant. Consider that he has yet to explain how those businesses will reopen in early May when his stay-at-home order remains in effect through June 10.
Reporters follow up with mostly softball questions in hopes of putting muscle on the barest of bones. He responds like the good doctor and nice man that he is, complimenting the journalist with “That’s a good question,” then patiently responding as though he’s explaining a diagnosis to a patient. Then he often defers to a senior administration official who provides soothing, non-specific generalities but little actionable information.
So reporters follow up, sometimes during the news conferences every Monday, Wednesday and Friday afternoon, and sometimes offline with the governor’s press staff or officials at agencies such as the departments of health and corrections. That’s where the dissembling deepens and frustrations of people who’ve asked legitimate questions multiply.
Megan Rhyne keeps tabs on complaints about Freedom of Information Act responses from state and local governments as part of her job as executive director of the Virginia Coalition for Open Government. Raw numbers of complaints are up only slightly in recent weeks, but she sees a remarkable trend: where complaints in normal times span a wide range of concerns and issues, they’re now all about the COVID-19 outbreak.
“This isn’t just a Virginia problem. I am hearing from my counterparts in other states that they’re having problems getting both granular-level data and discussions around the responses to the coronavirus outbreak,” she said.
Among the statewide data the government will not provide: which nursing facilities have confirmed coronavirus cases. Extended care facilities house the nation’s most vulnerable patients in close quarters and tend to them with overworked staff that cope with dire shortages of testing and personal protective equipment such as N95 respirators, medical-quality latex gloves and gowns.
Families with loved ones in these facilities desperately seek timely and reliable information amid horrifying reports about nursing homes. That is especially true in Virginia, where the toll of 45 COVID-19 deaths (at that point) at Henrico County’s Canterbury Rehabilitation and Healthcare center was listed last week as the deadliest of any nursing home in America at the time, according to a New York Times analysis. Deaths at Canterbury alone (up to 49 as of Sunday, the Richmond Times-Dispatch reported) accounted for a little less than a fifth of the state’s 277 deaths as of Sunday.
Journalists and even a group representing nonprofit senior residential facilities have asked the Virginia Department of Health for a breakdown. The agency’s refusal, under the circumstances, evidences a staggering lack of situational awareness: “long-standing policy is not to release the name of facilities unless there is a public health reason to do so or the facility has given permission.”
No “public health reason”? The governor himself declared a public health emergency on March 12. Since then, he has used his sweeping emergency to effectively suspend foundational constitutional freedoms of association and religion not to mention the right of businesses to operate freely, the latter forcing more than 416,000 Virginians out of work and onto unemployment rolls in less than a month. Yet an obscure state law that shields the identity of individual patients and physicians (something no one has requested) stands inviolate?
Yep. At least by the reckoning of Northam and Health Commissioner Dr. Norman Oliver. Oliver contends that the law applies not just to the identities of patients and their doctors (something abundantly shielded by overlapping and superseding federal and state patient privacy laws), but to the facilities as well as their corporate owners. The word “facilities” appears nowhere in the code section.
Still, the law grants Oliver discretion on the matter, and he has used it. He granted health departments in Northern Virginia (nowhere else) the right to share information on nursing homes with COVID-19 outbreaks with other facilities.
“This has to do with ongoing investigations of the actual disease,” Oliver said in an interview Friday after the news conference. “We are charged with public health data gathering when things like this occur. In order to further that investigation, I thought it was appropriate to inform other nursing homes.”
Asked why, in such an emergency, the same consideration could not be extended to the public, he said that Virginians should consider anyplace they go, “to the grocery store, to the doctor’s office, on a bus – you should assume the coronavirus is there.”
True. But unlike nursing homes, grocery stores and buses don’t perform COVID-19 tests, collect data and report it to his department.
How, then, can Virginians eventually get access to this information? Northam, in response to a question at Friday’s briefing, said that only the General Assembly could change the law. Oliver said he is aware of no discussions by the administration to ask for that.
Other states are far more forthcoming in giving families actionable information about this biological threat. Ohio, which has earned widespread praise for the leadership it has shown, provides a list of long-term care facilities reporting COVID-19 outbreaks by locality on its Health Department website and updates it daily. Maryland has published a list of COVID-19 cases broken down by ZIP codes. Other states have also released lists of nursing homes with fatalities.
The Mercury also filed a FOIA request seeking details on a $27 million contract Northam announced on April 6 to buy items such as medical N95 masks, gloves and gowns for front-line healthcare workers in Virginia. Ten days later, the governor’s office still had not made a copy of the contract public or answered questions about specifics of the deal with Norfolk-based Northfield Medical Manufacturing.
Virginia’s Capitol press corps is not a mean or vengeful bunch. Sometimes, they’re too nice. They abide flatfooted and unresponsive relations with the current administration, but there was the hope a month ago that the administration would rise to the occasion in the most dangerous, frightening and protracted crisis of anyone’s lifetime.
There’s still time.
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