Transparency News, 5/4/20

Monday
May 4, 2020

state & local news stories

“DHRM advises all agencies to comply with the Privacy Rule within HIPAA as a best practice.”

A Virginia ABC employee who was working during the coronavirus pandemic has died of COVID-19, the agency confirmed Thursday. An ABC spokeswoman wouldn’t release the employee’s name or work location, or what day the employee died. Dawn Eischen, ABC’s public relations manager, said ABC could not provide that information without violating the 1996 federal Health Insurance Portability and Accountability Act. That law, however, applies to health plans and certain health care providers. Asked for further explanation, Eischen said she was acting on guidance from the Virginia attorney general’s office and the state Department of Human Resource Management. Anne Waring, a spokeswoman for DHRM, said by email, “I am not aware of any guidance that DHRM provided related to your question regarding HIPAA. She later emailed to say ABC did reach out to the department this week and that “DHRM advises all agencies to comply with the Privacy Rule within HIPAA as a best practice.”
Richmond Times-Dispatch
(MEGAN's NOTE: Best practices are not "other laws" that allow information to be withheld.)

The number of COVID-19 deaths Virginia counts in long-term care facilities nearly tripled overnight Friday, rising to 311. The increase came as the state’s top health official shielded nursing homes and other facilities from disclosing cases and deaths, saying the facilities are defined as “people” under state law. The state’s tally of COVID-19 deaths in long-term care rose from 118 to 311 in one day because of a change in data collection by the Virginia Department of Health. At the same time, the number of confirmed cases increased from 1,537 to 2,412 as the number of outbreaks in nursing homes and assisted living facilities rose from 120 to 132. State Health Commissioner Norman Oliver resisted calls to begin identifying cases and deaths by facility, as Maryland and North Carolina now do, because he said state law defines a facility as “a person” and protects the data as personal medical information. Joani Latimer, the state long-term care ombudsman, said Friday that her office is “extremely concerned about the lack of transparency.” “We would be the first to understand and respect protection of individual privacy, but believe that would not be compromised by releasing facility-specific data (without resident names) and that the overall public health interest in having that information [is] paramount,” she said.
Richmond Times-Dispatch

The novel coronavirus pandemic is expected to devastate the economies of cities across Hampton Roads just as they get ready to adopt their budgets for the next fiscal year. Most have been making cuts and keeping the public up to date. Virginia Beach, Norfolk and Chesapeake have adjusted their spending plans to reflect revenue declines and expense hikes. Portsmouth has been doing the same behind the scenes, but City Manager Lydia Pettis Patton hasn’t kept residents in the loop on how. In a virtual meeting Tuesday night, the city solicited input from the public about the proposed budget it plans to adopt in two weeks, but the version Pettis Patton has shared does not account for the impact that COVID-19 may have on the city. The $697 million budget, a 3% drop from last year, keeps the real estate tax level for a fifth consecutive year and increases water and sewer tax rates by 5% as part of a budget proposal adopted in 2018, but doesn’t make a single mention of the pandemic. Pettis Patton did not respond to an interview request for this story.
The Virginian-Pilot

The Clarke County Board of Supervisors is considering four people to temporarily fill the Berryville District seat being vacated by Mary Daniel. Ralph Ambrosio of East Main Street, Matthew Bass of Rice Street, Thomas McFillen of Rosemont Circle and Thomas Parker Jr. of Isaac Court recently submitted applications for the provisional post. Two other people have withdrawn applications they submitted, according to County Administrator Chris Boies. Initially, county officials declined to release the applicants’ names. They cited opinions provided by the Virginia Freedom of Information Advisory Council and the State Attorney General’s Office in 2004 that applications for appointment, like those for employment, are exempt from release because of personal information they contain. George Archibald of West Main Street filed a formal appeal for release of the names. His recent correspondence with the county, copies of which he provided to The Winchester Star, show he was one of the six applicants for the temporary seat but he has since withdrawn his application. Board Chairman David Weiss on Thursday authorized releasing the names, Boies said, because “they (the supervisors) don’t want to cause any controversy by not releasing them.” The legal opinions cited by county officials “say that the information can be withheld. It doesn’t say it must be withheld,” Rhyne wrote in an email to The Star.
The Winchester Star

Danville’s city manager wanted to ask the state to recommend stronger social distancing and sanitation guidelines and requirements on businesses than currently used in the city, an email he sent to City Council members earlier this month shows. In the April 16 email, Danville City Manager Ken Larking told councilmen he reached out to individuals and organizations — including the Virginia Municipal League, Virginia First Cities, a nonprofit advocacy group and others — to “get their feedback on how we could encourage the state to implement stronger guidelines [and even requirements] for businesses to follow the best practices for social distancing and sanitation within their stores.” The Register & Bee obtained the email and others through a Freedom of Information Act request.
Register & Bee

stories of national interest

"The experiment beginning Monday could propel the court to routinely livestream its arguments."

It’s a morning of firsts for the Supreme Court, the first time audio of the court’s arguments will be heard live by the world and the first arguments by telephone. The changes are a result of the coronavirus pandemic, which has made holding courtroom sessions unsafe, especially with six justices aged 65 or older and at risk of getting seriously sick from the virus. The experiment beginning Monday could propel the court to routinely livestream its arguments. Or the 10 cases over six days could just be extraordinary exceptions to the court’s sustained opposition to broadening the audience that can hear, if not see, its work live. Cases that will be heard over the next two weeks include President Donald Trump’s effort to shield tax and other financial records and whether presidential electors have to cast their Electoral College ballots for the candidate who wins the popular vote in their state.
Associated Press

editorials & columns

"This case was months in the making and — it must be emphasized — could have resolved much sooner."

In an opinion released this week, Norfolk Circuit Court Judge Junius P. Fulton rightfully admonished the Virginia Department of Corrections for withholding records that shed light on what appeared to be a reprehensible breach of oversight in state facilities. This case was months in the making and — it must be emphasized — could have resolved much sooner. Strip searching an 8-year-old is outrageous on its face. People are right to ask if this happened before and, if so, how frequently. Getting answers proved challenging and was made considerably more difficult by VDOC officials who repeatedly refused straightforward records requests Harki filed in accordance with the Virginia Freedom of Information Act. The state agency threw up numerous roadblocks to Harki’s work. It denied him the names of prisoner visitors who’d been strip searched, the reasons they were strip searched, and those who were banned for refusing to be strip searched. And it did not honor Harki’s request even when the reporter insisted he would accept “the simplest, shorting thing that would satisfy the request” and illuminate for the public the facts about these policies. There is no doubt that the information Harki sought was of compelling public interest. These actions were taken by Virginia employees representing the state. But VDOC officials continued to deny Harki’s requests, despite the fact they followed the guidelines set forth in Virginia’s FOIA.
The Virginian-Pilot

More than 300 coronavirus deaths in Texas have been tied to nursing homes and other senior living facilities. Which locations? For the most part, no one will say. In an extreme interpretation of state law, Texas officials have refused to tell the public about any COVID-19 outbreak at a specific senior facility — not even the number of cases or the mere existence of a cluster, despite the fact that long-term care facilities have seen 40% of the state’s COVID-19 deaths. Now is no time for such secrecy. Amid the largest public health crisis of our lifetimes, communities need to know where the deadliest coronavirus outbreaks are occurring. Attorney General Ken Paxton should make it clear that agencies can release basic information — the number of cases and deaths at a specific facility — without compromising any patient’s privacy. The secrecy also prevents the public from understanding the scope of the pandemic in their midst. None of these facilities is an island: Some employees moonlight at a second nursing home to help pay their bills, providing an opportunity for the disease to spread. Knowing which facilities have outbreaks can help the entire senior home community better protect against this highly contagious respiratory disease. Such information also helps the public hold local health officials accountable for their efforts to address the outbreaks. It’s hard to track the effectiveness of their response without knowing which facilities had cases at various points in time.
Austin American-Statesman

The recent 5-2 decision by the Hanover County Board of Supervisors to charge ahead with its public hearing on the massive Wegmans distribution center zoning case on May 6 violates the governor’s emergency stay-at-home executive order, which restricts public gatherings to no more than 10 people. More importantly, it elevates Wegmans’ desire for fast-track approval above the exercise of county citizens’ constitutional and statutory rights. More than 200 citizens packed the Planning Commission’s public hearing in a near unanimous display of opposition to Wegmans proposal. The citizens of Hanover deserve the same opportunity to attend the Board of Supervisors meeting to express their concerns in person. The only way that can happen is to postpone the public hearing until after the governor’s stay-at-home order is lifted. 
Brian Buniva, Richmond Times-Dispatch