Which nursing homes have COVID-19 deaths? Ohio Department of Health says it doesn't know

3,800 died of COVID-19 in long-term care in Ohio
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Posted at 10:12 AM, Dec 09, 2020
and last updated 2020-12-09 19:35:34-05

COLUMBUS, Ohio — More than 3,800 residents of long-term care facilities and nursing homes have died of COVID-19 so far this year in Ohio. That’s nearly 55 percent of the state’s total COVID-19 deaths.

But state officials continue to keep secret the names of the facilities tied to those deaths.

WCPO filed a complaint in the Ohio Court of Claims in August, seeking the release of that information. For months, the Ohio Department of Health had taken the position that releasing the names of nursing homes with COVID-19 deaths would violate state privacy laws.

But attorneys for the health department revealed for the first time in a court filing on Nov. 25 that the agency does not keep track of COVID-19 deaths at specific nursing homes.

“ODH does not maintain records by COVID-19 deaths from specific long-term care facilities, so the complaint should be dismissed. A public body does not have to create new records,” attorneys with Isaac, Wiles, Burkholder & Teetor wrote in a motion to dismiss WCPO’s complaint.

In a response, WCPO’s attorney Jack Greiner wrote in a court filing last week that “this suggests rank incompetence at the ODH.”

This is the latest twist in the legal fight by WCPO and The Enquirer, which also filed a complaint in the Court of Common Claims, to obtain information about COVID-19 deaths in long-term care facilities.

“As troubling as it is that the public doesn’t have that information, the idea that the Ohio Department of Health, if in fact they can’t generate that information for themselves, how are they making resource allocation decisions?” Greiner asked. “I just find that astounding.”

The Ohio Department of Health’s website shows only long-term care facilities, which includes nursing homes, with COVID-19 cases and how many cases each has.

It does not say how many residents have died there from COVID-19.

When WCPO asked in June for the number of deaths at long-term care facilities in Hamilton, Butler, Warren and Clermont counties, an ODH spokesperson declined to provide the data, citing privacy concerns.

“The Ohio Department of Health is not releasing deaths at long-term care facilities by facility for COVID-19 or any other cause of death. We are only reporting it at the county level. A person could be too identifiable and that information is ‘protected health information,’” ODH spokesperson Melanie Amato wrote in an email to WCPO.

While Ohio officials refuse to disclose the number of COVID-19 deaths linked to each long-term care facility, other states such as Kentucky, Indiana, Tennessee, West Virginia and Michigan do report that data.

Over the past six months, WCPO has interviewed several families who have lost loved ones living in nursing homes to COVID-19 and want the health department to release more information about deaths publicly.

“Families can't go on that (ODH) site and see how many fatalities. How many people died while they were staying in a particular facility,” said Joy Gazaway, who lost her 60-year-old brother Donald Gazawayin April to COVID-19 while he was at a nursing home recovering from a stroke.

"This is the silent aspect of the pandemic," Gazaway said in a September interview. "These people are dying and nothing is said.”

Elaine Ryan, vice president for state advocacy at the AARP, urged Ohio officials in July to release daily totals of cases and deaths at each long-term care facility.

“We looked at Ohio’s law. They can release those (facility) names. There’s nothing in the law that precludes them from doing so,” Ryan said in a July interview. “We’re in a pandemic where information matters.”

Greiner agreed. “Death certificates are public records. And death certificates have the cause of death on them, so it’s not like we treat cause of death privately.”

Now attorneys for the health department say officials cannot search the Ohio Disease Reporting System, where COVID-19 cases are recorded, to find deaths by facility. That’s because the ODH does not collect information about COVID-19 deaths directly from long-term care facilities.

“To produce the requested information, I would need to make system changes and enhancements (i.e., reprogram ODRS). This change would have to be on a going-forward basis … Simply put, the requested information does not currently exist,” according to an affidavit from Kara Tarter, who oversees data collection and reporting at the state health department.

Greiner believes the health department can provide COVID-19 death information by facility, since it collects the names of those nursing homes in “free-form boxes” on forms submitted to the Ohio Disease Reporting System.

“The ODH contends that it cannot search for information in the free-form boxes. But that does not mean the record does not exist, nor does that relieve the ODH of its duties under the Public Records Act,” Greiner wrote in a court filing last week opposing ODH’s motion to dismiss WCPO’s complaint.

Greiner also has a personal interest in the case because his mother lived at a nursing home before she died several years ago. If she were still alive, Greiner said, he would want to know if there were COVID-19 deaths at her nursing home.

"I would like to know how that facility dealt with COVID,” Greiner said. “If there were a high number of deaths there, honestly I would have to give some serious thought to whether I would place my mom or another loved one there."

A special master in the Court of Common Claims may decide the case in the coming weeks. Then his recommendation goes to a judge for a final ruling.

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