INDIANAPOLIS (WTHR) - Indiana just reached a tragic milestone.
The Indiana State Department of Health announced this week more than 1,000 elderly Hoosiers have now died after contracting COVID-19 in a nursing home. They are among at least 4,600 Indiana nursing home residents diagnosed with the virus that has swept through hundreds of long term care facilities in the state. Indiana health officials know this because in early April, the state health commissioner ordered that nursing homes must report all new cases of COVID-19 and all COVID-19 deaths to ISDH within 24 hours.
But while the state is collecting detailed data, state leaders have refused to release much of it publicly. Despite ongoing requests from 13News and other Indiana news organizations, ISDH and Governor Eric Holcomb will not disclose the number of COVID-19 cases and deaths at each nursing home. The failure to release that data – statistical information that many other states have been releasing for weeks – prompted WTHR to file a formal complaint with the Indiana Public Access Counselor, claiming ISDH’s decision to keep the information secret is a violation of the Indiana Access to Public Records Act.
Tuesday afternoon, the Public Access Counselor offered an opinion on the issue, stating ISDH has not violated state law because it does not have a document that contains the information WTHR has requested. While ISDH acknowledges it is collecting COVID-19 case and death information from every Indiana nursing home, the state agency says it hasn’t tallied all the information on a piece a paper and, therefore, does not have to share the data it has gathered.
13 Investigates obtained ISDH’s full response to WTHR’s formal complaint. That response – and the arguments the state health department used to defend withholding COVID-19 nursing home data from the public – has raised eyebrows and concerns by some state lawmakers and organizations that advocate for senior citizens.
State computer program “does not generate a report”
WTHR’s request to state health officials was straightforward, asking for the number of COVID-19 cases and COVID-19 deaths at each licensed long term care facility in Indiana.
Following the request, state health Commissioner Dr. Kristina Box said ISDH would not release that type of facility-specific data, stating that aggregated data for all nursing homes “is the extent to which we want to report data.”
The governor also made it clear he would not order the release of more detailed nursing home information. “I will not, and the reason is because we respect that private businesses, that nursing home, is operating under our regulations and that’s where the relationship exists,” Holcomb explained.
But Indiana law requires that state agencies publicly disclose documents and records they collect, unless releasing the information is prohibited or exempted under statute. Seeing no exemption under Indiana law to prohibit the release of nursing home data collected by ISDH, 13News filed its complaint with the Indiana Public Access Counselor.
The response from ISDH, obtained today by 13 Investigates, lists multiple reasons why ISDH believes it can withhold the nursing home COVID-19 data from state residents.
First, the agency said it collects COVID-19 data from nursing homes in a manner that cannot easily be provided to the public.
“The computer program ISDH uses to collect long-term care facility information does not generate a report with running totals for each facility for either COVID-positive cases or COVID-related deaths. To generate a list of all facilities with their cumulative case and death counts would require an ISDH employee to create a new record by manually analyzing information in the reporting system and to continually analyze it to keep it updated… ISDH determined that it does not have records containing the information requested, and that the Access to Public Records Act does not require ISDH to create a document responsive to his request,” wrote ISDH chief legal counsel Kelly MacKinnon.
Second, the agency suggested it does not have time to analyze its records to provide facility-specific data. “In an attempt to be responsive, ISDH attempted to explore what information, if any, it could reasonably provide, given that ISDH’s resources are needed for the public health emergency response, and determined that it could provide aggregate information, which is available on its website and updated weekly,” MacKinnon wrote, adding that the statewide data allows the public to understand “how much COVID activity is related to long-term care facilities in the state.”
And lastly, ISDH told the Public Access Counselor that providing media with COVID-19 data for each individual nursing home isn’t really necessary. “As of May 4, ISDH requires long-term care facilities to provide residents and their family members daily (Monday through Friday) information about COVID in facilities. This is a more effective, and timely, method of communicating COVID information to residents and families,” MacKinnon explained.
Each of the arguments offered by ISDH’s attorney drew strong criticism from senior citizen advocates who have been pleading with state leaders for more COVID-19 transparency within nursing homes.
Attacking the state’s arguments
“I read the objections, I read the report, and it’s kind of laughable,” said State Rep. Ed Delaney (D-Indianapolis), who has been critical of the ISDH decision to withhold nursing home data during the pandemic. “They obviously have the data. They add it up every week [to provide statewide aggregated reports], so they just don’t want you to have the information.”
While Indiana law states that government agencies are not required to create documents that do not already exist, it does permit agencies to release electronic records such as the database containing COVID-19 nursing home data. If those records contain confidential information (ISDH stated its database includes individually identifiable information that is confidential under state law), a state agency is permitted to redact the confidential information but cannot refuse to disclose otherwise releasable portions of the records.
Delaney also took issue with ISDH’s argument that its computer program does not generate a running tally of COVID-19 cases and deaths at individual nursing homes and that it would be difficult for health department staff to calculate facility-specific data for public reporting.
“If the governor doesn’t have either a spreadsheet or an adding machine, my campaign would be happy to pay for one for him,” Delaney said sarcastically. “This is a legitimate request for important data, and to suggest that state workers are too overburdened or too overwhelmed to calculate the data is an abject failure of responsibility.”
The director of AARP Indiana, which represents more than 800,000 seniors across the state, expressed disappointment with ISDH’s position that the agency cannot analyze its nursing home database to provide families with facility-specific COVID-19 information.
“They have 32 other states they can look to to maybe borrow their methodology of how they are reporting facility-level public data because Indiana seems to be at the end of the line,” said AARP Indiana state director Sarah Waddle. AARP recently sent the governor a letter urging the governor to release more detailed COVID-19 nursing home data in Indiana. The organization vehemently disagrees with ISDH’s statement that ordering nursing homes to provide data to its residents and their families has been “a more effective and timely method of communicating COVID information.”
“This couldn’t be further from the truth,” said Waddle, citing countless situations reported to AARP and 13News of Indiana families who have been unable to get accurate, complete or timely COVID-19 information about their loved ones’ nursing homes. “This need for this data and outcry for it far outweighs anything else they might say as far as not being able to produce it.”
No violation of state law
In considering 13News’ complaint, the Public Access Counselor was asked to determine whether ISDH violated the Indiana Access to Public Records Act by not releasing the nursing home data. In an opinion issued Tuesday afternoon, Public Access Counselor Luke Britt said he believes a violation did not occur.
“It is the opinion of the public access counselor that the Indiana State Department of Health did not violate the Access to Public Records Act if the agency does not maintain the documents sought,” Britt wrote. “From my discussions with ISDH, [13News’] goals are not mutually exclusive from the agency’s goals. ISDH asserts that they simply do not have a running tally, database, or spreadsheet with that information.”
13News will continue to pursue access to the COVID-19 nursing home data collected by ISDH through the Indiana Access to Public Records Act and other options available under state law. With the number of COVID-19-related cases and deaths continuing to rise in Indiana nursing homes -- and with nursing home residents accounting for nearly half of all COVID-19 deaths in the state -- WTHR believes the data is crucial in helping families make informed decisions about the care of family members in long term care facilities.
Where to find COVID-19 nursing home data
In the meantime, 13News has found another way to collect COVID-19 data related to Indiana nursing homes. 13 Investigates has gathered information from self-reporting long term care facilities and county health departments, and that information has been compiled into a searchable online database containing coronavirus data on more than 200 Indiana nursing homes. You can search the 13News Long Term Care Facility COVID-19 database here.