During those early days of the COVID-19 pandemic, Gov. Larry Hogan said something that many of us weren’t expecting him to say — the location, ages and gender of those who contracted the virus.
For those of us who pay attention to these kinds of things, it was a welcome change in practice, if not policy. Up until that point in early March when Maryland announced its first coronavirus case, Maryland’s Department of Health (MDH) was adamant that releasing this kind of information ran afoul of its understanding of the federal Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA. It’s the same approach MDH has about releasing information about the more common, yet also contagious, flu.
We have tried since early in the flu season to get MDH to disclose this information. We’ve filed Public Information Act requests, we’ve made phone calls and sent emails. We’ve talked to lawyers who, quite frankly, are confused by MDH’s application of the HIPAA law as much as we are.
We’d understand MDH’s responses if we had asked for names and addresses. But we didn’t. We asked for basic demographic information, like the number of cases of the flu in Frederick County and other jurisdictions. We were trying to see if the cases were worse here than in other parts of the state.
It seems like a pretty basic and reasonable question. And as far as HIPAA is concerned, we fail to see how MDH’s belief that releasing non-identifying information about a county of more than 250,000 can pinpoint an individual. Oh, and did we mention, that the state already releases this level of detail by county for several sexually transmitted diseases and for those with Lyme disease?
As reporter Heather Mongilio’s story on Saturday pointed out, lawyers and other First Amendment supporters see no reason that this information can’t be released.
“But you also see all kinds of other situations where it is used as essentially an excuse,” said Kirk Nahra, partner at WilmerHale and adjunct professor at American University’s Washington College of Law. “And sometimes the excuse is because somebody is cautious. Sometimes it’s because they don’t understand. And sometimes it’s because they don’t want to tell you.”
Nearby Pennsylvania and Delaware both release flu data by county. Virginia doesn’t and that’s only because the state health department doesn’t keep track of flu cases.
But we’re not pointing this issue out only because the state isn’t being transparent with the numbers. There’s a very practical reason for knowing where or how densely the flu is concentrated — it can help prevent it from spreading.
Dr. Randy Culpepper, deputy health officer of the Frederick County Health Department, told our reporter that if the county health department had this information it “would allow us to identify areas of our community that are experiencing disparities and give us the opportunity to address some of the barriers to care.”
Finally, we’d like to point out that the state actually undercut its reasoning for withholding this information when it did make public non-specific, geography-based COVID-19 details. And, as the governor acknowledged when releasing very specific information on nursing home infections, it was vital information that the public needed to have.
“If you say there’s an outbreak here, people will find out who is there and there are concerns of legal issues and privacy concerns of the patients,” Hogan said during a press conference April 29. “I overrode all of that and said because of the patients and the family members who have a right to know. There is some argument internally of whether that is right or not.”
We say that releasing that information was the right thing to do. Knowing what was going on in these nursing home “hot spots” was important information for the community at large.
And now with this precedent, we ask MDH to sit down with the state’s Attorney General to re-examine this policy. The current practice lacks transparency and holds back important data.
Look, we realize that the coronavirus is more easily transmitted and more deadly than the flu. In some ways, we loathe comparing the two. But the flu isn’t hard to catch either.
For us, it comes down to arming the residents of Maryland with information. And we can’t come up with a single reason why flu data by county or even ZIP code isn’t considered public information.
The state health department needs to change its policy now.