DHEC won’t disclose names of SC nursing homes with reports of coronavirus cases, deaths

The first person to die in South Carolina from the novel coronavirus was a resident at the Lexington Medical Center nursing home, according to a March press release by S.C. Department of Health and Environmental Control.

Since that March 16 announcement, and an announcement on March 20 of an assisted living facility death, DHEC has largely clamped a lid of secrecy on all South Carolina nursing homes where coronavirus deaths and infections have taken place. The agency has usually only provided lump sum statewide numbers for those facilities. There are 196 nursing homes in South Carolina.

Under DHEC’s secrecy policy, the public is prevented from learning the names of elder care facilities where patients and staff have tested positive for the coronavirus, as well as the names of any such facilities where residents or staff have died.

Now, a lawsuit has been filed in Richland County seeking to force DHEC to disclose to the public names of nursing homes that have infections of COVID-19, the sometimes severe or even fatal respiratory disease that results from the novel coronavirus.

People are getting infected with COVID-19 and dying in South Carolina nursing homes, according to three county coroners contacted by The State newspaper at random. Coroners in Richland and Lexington counties reported three such deaths each, and the Clarendon County coroner’s office reported one COVID-19 death from a nursing home.

Those deaths are among the 124 COVID-19 deaths statewide as of Monday, a number that has grown quickly since the first death was identified and made public in mid-March.

Asked last week how many nursing home residents and staff have died of COVID-19, DHEC told The State, “While this information isn’t required to be reported to the agency, our data collection team and epidemiologists are actively investigating and compiling this information.” Since March 13, the state has ordered all public visits to nursing homes to cease to protect the public and residents, according to DHEC.

DHEC said late Monday afternoon in an email that it is “working to compile additional information this week” about nursing homes. The agency did not indicate what additional information will be made available.

The S.C. AARP, which has some 600,000 members over age 50, says it’s a matter of high public interest to disclose the names of nursing homes with coronavirus infections and deaths.

“This is a matter of life and death for people across South Carolina. It’s shocking to think we would not make that information available,” said Teresa Arnold, president of S.C. AARP. Names of nursing homes could be released without naming individual people, she said.

There are some 20,736 licensed beds in the state’s 196 nursing homes, according to DHEC.

DHEC does release aggregate COVID-19 numbers of nursing homes and other care facilities where COVID-19 infections have happened. For example, as of Sunday, DHEC reported a total of 49 care facilities have had a total of 188 COVID-19 cases and, also, 208 health care workers in those facilities have been infected.

But DHEC did not release the number of fatalities of elder care facility patients or the names of facilities that have had confirmed cases of the virus.

In recent months, in numerous states around the country, nursing homes and group care facilities — where people live in close quarters and the disease can spread easily — have been the scenes of thousands of deaths, according to national news reports. A front page Wall Street Journal headline read, “Coronavirus strikes at least 2,100 senior facilities across U.S., killing 2,300 people.”

After the initial reports in February of 35 deaths in a Washington nursing home, mass nursing home deaths have been reported in numerous states including Virginia, New York, New Jersey, Massachusetts and Maryland. For example, 70 people died at a New Jersey nursing home, according to press accounts. In New York State, more than 1,100 nursing home and other care facility patients have died from COVID-19, according to that state’s health department.

Nursing homes, with their elderly populations, can be lethal sites for COVID-19 infections because people over 60 are most vulnerable to dying from complications resulting from the coronavirus, experts say.

Across the country, protests by the public have caused governors of some states to release the names of nursing homes and care facilities where people are testing positive for the coronavirus.

Over the weekend, Florida Gov. Ron DeSantis ordered the state to disclose publicly the names of elder care facilities, according to the Miami Herald. DeSantis revealed that 303 facilities in 45 Florida counties “have staff or residents who have tested positive for the deadly respiratory infection,” the Herald said.

But in South Carolina, officials have prevented the public from learning the names of elder care facilities where patients or staff members have caught the coronavirus.

DHEC last week refused a written request by The State newspaper to reveal those facility names, saying, “Due to privacy restrictions, DHEC is unable to comment on that information. The department is unable to provide information concerning any individual, including, but not limited to, details about their residence, age, sex, or physical condition.”

A lawsuit filed last week in Richland County state court will, if successful, force DHEC to reveal the names nursing homes where people are sick and dying from COVID-19.

On Friday, a day after getting a rejection from DHEC of his Freedom of Information Act request to identify nursing home and long-term care facilities where residents and/or staff have tested positive, Frank Heindel filed a lawsuit in Richland County. The lawsuit seeks a state court ruling on whether DHEC can keep the names of those facilities secret.

“DHEC’s refusal to respond to the FOIA request endangers countless numbers of S.C. citizens, because the requested information is essential for members of the public including health care providers to be able to protect themselves during the pandemic,” Heindel’s lawsuit said. It added that health care workers, because of their positions, are required to enter nursing homes.

“DHEC’s refusal is an obstruction of justice and an outrageous bureaucratic ploy, possibly undertaken in an attempt to shield its own lack of responsiveness to public scrutiny,” his lawsuit argues.

In a response to Heindel’s FOI request, a DHEC staffer wrote in an April 17 email that coronavirus information identifying specific nursing home and other facilities was “exempt from disclosure under the Freedom of Information Act” because it is “information of a personal nature” that would be an “unreasonable invasion of personal privacy.”

In his Friday lawsuit, Heindel argued that DHEC’s response was “in bad faith” because his request for nursing home information “could not possibly be construed to request any personally-identifying information regarding any resident or patient of any facility under the regulation of DHEC.”

His request, Heindel argued, seeks “only public information acknowledged to be in the possession of DHEC regarding“ those facilities where people have tested positive — not the people themselves.

Heindel is represented by Desa Ballard, a veteran Columbia attorney with experience in public records law and complex litigation in business and government matters.

Heindel told The State that he strongly believes the names of nursing homes where Covid-19 infections have happened are of public interest.

“Like everyone else, I am very concerned about our most vulnerable citizens and communities, and the health care workers who are risking their lives to care for our loved ones. DHEC exists to serve us; we don’t exist to serve DHEC. The lack of transparency, and DHEC’s cavalier attitude motivated me to bring this to the Court’s attention,” Heindel said.

Heindel and Ballard seek a court hearing within 10 days.

On Sunday, the federal Centers for Medicare and Medicaid Services issued a directive requiring nursing homes to report coronavirus cases directly to the Centers for Disease Control and Prevention. Nursing homes will also be required to report that information to patients and families.

Up to now, the federal government has not collected statistics, which could show trends, about coronavirus infections and deaths in nursing homes.

But the directive does not require that information to be released to the general public.

Randy Lee, president of the S.C. Health Care Association, which represents some 90% of state nursing homes, declined comment on the situation Monday.

“We are controlled totally by DHEC and CMS (Centers for Medicare and Medicaid Services), and we comply with all their directives,” Lee said.

Vickie Moody, CEO of Leading Age SC, a group of not-for-profit eldercare facilities in South Carolina, also declined comment on whether DHEC should make public the names of nursing homes where there have been COVID-19 infections and deaths.

Bill Rogers, executive director of the S.C. Press Association, told The State, “This is information the public needs to know to protect itself and their loved ones. I can’t understand the need for secrecy.”

This story was originally published April 20, 2020 at 2:18 PM.