Once again, the Cabinet for Health and Family Services claims — in a familiar refrain — that a statutory framework precludes access to critical records relating to nursing home oversite and the public's right to know.
Who is this statutory framework designed to protect? Whose interests does it serve?
Lexington Herald-Leader staff writer John Cheves recently reported that CHFS "refused to comply with an Open Records Act request by the Herald-Leader to provide copies of all deficiencies issued since March 1."
CHFS maintained that "Information on enforcement cases is not available through Open Records until the process is closed. For the eight facilities identified as having immediate-jeopardy deficiencies, the findings are pending CMS review and processing. Once this has been completed, they will be posted."
"Before the coronavirus pandemic, 41% percent of Kentucky's nursing homes were cited for infection-control deficiencies," Kentucky Health News notes in a June 21 analysis of Cheves' article.
"State inspections of Kentucky nursing homes since the coronavirus pandemic began found almost no deficiencies in infection control, though nursing-home residents have accounted for more than 60 percent of the state's 524 deaths from COVID-19."
"'Covid-19 has reached at least 57 percent of Kentucky's 285 nursing homes,' Cheves reported. But from March 10 through June 16, 'The Kentucky Health and Family Services Cabinet identified deficiencies in only 3 percent of the 202 inspection reports it had released.'"
Center for Medicare Advocacy senior policy attorney Tony Edelman questions "How [it could] be that everyone is doing such an excellent job that we can't find deficiencies, and yet all of these residents are getting covid and dying?"
The answer may very well lie in the unsanitized records — with legally supportable redactions to protect residents' privacy — relating to nursing home violations to which CHFS denied Cheves access but which will form the basis of the information it publishes in a sanitized form.
It seems that CHFS believes it is as constrained by law to deny the public access to records relating to its oversite of vulnerable adult and aged Kentuckians as it was to deny the public access to records relating to its oversite of vulnerable Kentucky children in child fatality or near fatality cases.
And that interpretation of the law cost CHFS, and taxpayers, $756,000 — later reduced in an offer of settlement — plus attorneys' fees, when the courts soundly rejected it following protracted litigation with the Herald-Leader and the Courier Journal.
https://caselaw.findlaw.com/ky-court-of-appeals/1726554.html
