Under the state Health Department’s interpretation of a 65-year-old law — bolstered by a 29-year-old Pennsylvania Supreme Court decision about a criminal case involving venereal disease — only 10 counties or municipalities in the commonwealth are entitled to detailed data about infectious diseases in their areas.
Allegheny County is one of them.
But Beaver, Butler, Washington and Westmoreland counties are not. And that disparity has left some emergency management directors fuming.
“I can tell you, speaking just for Butler County, that we are frustrated,” Steven Bicehouse, Director of Emergency Services for the county, said Friday. “Why can’t we all have that data?”
“Often we hear about cases on the news as opposed to hearing them from a regulatory agency that should be able to give us that info. And as an emergency manager, it’s frustrating because you can’t brief your county leaders or even your municipal leaders because you don’t have the information,” Mr. Bicehouse said.
His counterpart in Beaver County feels similarly.
“My stance is that the more information we have the better we can respond,” said Eric Brewer, Beaver’s director of emergency services, who has heard complaints from local fire and police chiefs about the lack of information — and the fact that it’s available to Allegheny County’s first responders.
“I think that’s the world we live in: We want as much information as possible. Give us the information, and let us decide,” Mr. Brewer said. “This is a public health emergency. If this was something else, we could give information out and let the public make better decisions.”
Last week, Jeffrey Yates, director of public safety for Washington County, sent a sharply worded letter to the health department, saying the county was “disappointed” in the information it had been getting and demanding better data, specifically to aid first responders.
“The Board of Commissioners and my department are experiencing a public relations nightmare because the PA DOH refuses to release information about the COVID-19 victims in our county,” the letter reads.
“I’ve fielded more phone calls in the past few weeks from people saying they wish they knew. A whole lot of them revolve around wanting to know what they have in their municipality, why does Allegheny County know and Washington doesn’t?” Mr. Yates said. “You look at our elected officials, they’re getting blasted because they don’t have the data. And people come back with, ‘You know, you’re just not telling us.’ I understand people are concerned, people are afraid, but it’s just difficult when you’re playing by a different set of rules.”
Currently the state health department — which functions as the health department for all counties and municipalities that don’t have their own — provides daily updates on the COVID-19 pandemic. The data it provides include statewide positive and negative tests and deaths; the percentage of cases and hospitalizations in seven different age brackets; and the number of cases and deaths in each of Pennsylvania’s 67 counties.
But 10 counties and municipalities get access to far more information, and some — including Allegheny County — disseminate that data to the public and first responders.
In Allegheny County, for instance, daily updates including the number of positive cases in each municipality as well as a gender breakdown. Philadelphia breaks the outbreak down by ZIP code. And Chester County provides robust charts and graphs,. Additionally, Allegheny County’s 911 center is able to flag addresses for a rolling 30-day period if an occupant has tested positive for COVID-19. Some places, however, such as the city of York, publicize few if any details about their area’s cases.
The state says that the 1955 Disease Prevention and Control Act has specific language that bars it from giving infectious disease data to any entity other than a local health department. Of these, the state has 10: Allegheny, Bucks, Chester, Erie, Mongtomery and Philadelphia counties; and Allentown, Bethlehem, Wilkes-Barre and York.
Those health departments are able to access data entered by laboratories into PA-NEDSS, the state version of the National Electronic Disease Surveillance System, about any one of roughly 72 infectious diseases that are tracked.
How the local health departments choose to use or disseminate the data is up to their interpretation of the law, according to the state.
“That data is considered to be private information and is not shared. So it’s not shared with another state agency, it’s not shared with anyone. The law specifically says the Department of Health cannot provide any information about a patient unless it’s deemed necessary for public health purposes,” said April Hutcheson, the department’s communications director.
The 10 entities that can access data can obtain only information about their own area. In other words, the Allegheny County Health Department, for instance, is restricted to data about Allegheny County cases.
Considering the virus’s ubiquity, the state believes that it is unnecessary to provide specific information about positive cases because the public should assume the disease is everywhere.
‘There isn’t a public health interest to provide more microinformation,” Ms. Hutcheson said. “When you’re dealing with a communicable disease like COVID-19, we are operating under the assumption that it is here, it is sustained within our community, and municipality-level data isn’t going to contain or stop the spread. We consider it everywhere, and we all need to take the same measures to prevent its spread.”
As well, Ms. Hutcheson explained, people are mobile, meaning they cross municipal borders.
“Individuals don’t fit in their municipalities. Individuals are all over,” she said. “We all commute to work. We may not go to school in the municipality where we live, or shop in the municipality where we live. The fact that [COVID-19 is] in a particular municipality is not as big a public health threat as the fact that it’s in that county.”
A potentially problematic byproduct of releasing more specific geographic data would be to have someone on one side of a county where there are no positive COVID-19 results to think they are protected and then abandon following safe practices, when that might not be the case at all. Some emergency management directors share that concern.
The health department also does not believe that providing gender data about infections is useful.
“There isn’t a public health reason to do it. There needs to be a compelling public health reason to do it,” Ms. Hutcheson said. “There isn’t a justifiable public health reason” to provide more than positive or negative results and data about the age ranges of those infected, she added. That data can help encourage people in the most affected age brackets — 25-49 and 50-64 — to be scrupulous about measures like frequent hand-washing, social distancing and staying home.
Over the years, the state has faced legal challenges to its refusal to provide data about infectious disease. Since 2011, the 1955 law has been cited in eight cases before the state Office of Open Records concerning lead testing, Legionnaires’ disease, E.coli and salmonella. In every case, the state’s right to withhold the data has been upheld.
The decisions have cited one specific paragraph in the law, which reads:
“State and local health authorities may not disclose reports of diseases, any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations, to any person who is not a member of the department or of a local board or department of health, except where necessary to carry out the purposes of this act. State and local health authorities may permit the use of data contained in disease reports and other records, maintained pursuant to this act, or any regulation, for research purposes, subject to strict supervision by the health authorities to insure that the use of the reports and records is limited to the specific research purposes.”
That language was contemplated by the state Supreme Court in a 1991 decision, Com. v. Moore, that ultimately upheld the restrictions.
The case involved a man charged in the 1986 rape of an 8-year-old girl. Prosecutors believed that he had infected the girl with gonorrhea and sought records about whether he was treated from the Allegheny County Health Department as part of their case.
Citing the 1955 act’s confidentiality provisions, the health department refused. An Allegheny County Common Pleas judge ruled that “there is no explicit statutory authority under which a court of common pleas has power to grant access to information expressly made confidential by the Disease Prevention and Control Law.”
The state Superior Court reversed, finding that, “Our legislature certainly did not intend the privilege to be used by a defendant to shield inculpatory evidence from admission during his criminal prosecution.”
But the Supreme Court reversed again, with confidentiality winning out, even in a criminal proceeding involving a heinous crime.
Courts had little guidance to go on about legislators’ intent in passing the law.
“Unfortunately, legislative history of the Act and case law interpreting the Act is sparse and what little exists is inutile presently,” the Superior Court wrote.
“The legislative history of the Disease Prevention and Control Act is lacking in substance,” according to the Superior Court. “Most of the historical record consists of little more than a public reading of the act. Apparently, the discussion of the act occurred almost entirely behind ‘closed doors’ or in committee, where there was little effort to produce committee reports or create a written record. Consequently, guidance as to legislative intent is nonexistent regarding the Disease Prevention and Control Act specifically.”
Some of the region’s emergency management leaders are not impressed by the state’s reliance on the law.
“Times need to change,” said Washington County’s Mr. Yates.
“Given the fact that this is not a simple venereal disease, this is a virus that can kill people that has more far-reaching impact in the community, I think hiding behind the 1955 law is ludicrous,” said Mr. Bicehouse of Butler County.
“There’s different ways around it, and I cannot believe in this day and age that we’re hiding behind a 1955 law...” Mr. Bicehouse said. “I understand you have to protect privacy and maybe not give a street or name, but the municipality is a pretty broad stroke, and it doesn’t pinpoint those things, so what’s the harm in the public and the emergency responders knowing that sort of thing?”
Another emergency management head who has taken action is Roland “Bud” Mertz, Westmoreland County’s director of public safety. He said he learned through the news media — not the state health department — of the six residents and three employees who tested positive for COVID-19 at Bethlen Communities' Ligonier Gardens personal care home in Ligonier.
That did not sit well with him.
“What I have to do as an emergency management department is I have to better monitor the cases that are in our congregate care homes, and there isn’t a lot of information being released from the Department of Health as far as awareness of the congregate care homes,” Mr. Mertz said.
“We realize this is a big disaster and maybe the Department of Health is overwhelmed, but we also realize that our most vulnerable communities right now are the congregate care homes,” Mr. Mertz said.
When those locations — nursing homes, personal care facilities, group homes — are affected, Mr. Mertz said he wants to be notified by the state health department as soon as it finds out. He said he’s sent emails and contacted state legislators for help.
In the meantime, the only thing the Allegheny County’s neighbors can do is look on with jealousy and frustration.
“I know that whenever people look at one county that has more information than the other county, then they feel neglected, they feel they’re somehow behind or uninformed,” Mr. Yates said. “Just to level the playing field so people feel like they’re receiving the same information, it’s important.”
Beaver County’s Mr. Brewer said he addressed his commissioners Friday about the data divide. He said he’s sent a letter to the health department expressing concerns over first responders not having detailed information.
“Last I heard this morning was it’s sitting at legal’s desk at the Department of Health. It’s a slow process...Our stance is we don’t even need to know this person’s name, we just need to know if we go to 123 Main St. in Anytown, PA that somebody in that house was diagnosed positive.” Mr. Brewer said.
“It’s in the lawyers’ hands.”
©2020 the Pittsburgh Post-Gazette. Distributed by Tribune Content Agency, LLC.
