NAMELESS BEHAVIOR

A REQUEST FOR PUBLIC RECORDS OF A NURSING-HOME INVESTIGATION TRIGGERS A CHAIN REDACTION.

In the wake of mounting criticism over a state policy of keeping hospital death records secret, Colorado Attorney General Gale Norton recently proposed changes in the law that would make information about suspicious hospital deaths more accessible. But don't count on any similar outpouring of candor concerning the medical care of the still-breathing.

At the same time that Norton was pushing for less secrecy with regard to death records, attorneys in her office were fighting in Denver District Court to bar one woman's access to records of public hearings of a state nursing-home investigation. State officials claim that releasing the records would violate the privacy of nursing-home residents--the same people the investigation was supposed to help.

Mary Murphy, the nursing-home activist who triggered the court battle, says the real issue in the case isn't patient privacy but state regulators' desire to shield their work from scrutiny. "As a licensed nursing-home administrator, I can't believe this is happening," she says. "I guess they didn't think anyone was going to challenge them on this."

Last fall the state held six days of administrative hearings concerning the Franklin Park Health Center, a 95-bed facility in Capitol Hill operated by the Baptist Home Association of the Rocky Mountains. The center had been cited by state health officials for numerous alleged violations of environmental and "patient dignity" standards over a three-month period. Although none of the violations was considered life-threatening, Franklin Park had originally been assessed a whopping $50,000 in civil penalties.

Murphy, a gadfly who describes herself as "mother founderess" of the American Institute of Pastoral Health Care, a nonprofit group dedicated to fighting abuse of the elderly poor in church-owned institutions, attended two days of the hearings. "I left in disgust," she says. "A lot of it was just attorney badgering, and I knew I could get [records of the hearings] when it was over."

After months of negotiations, Franklin Park and the Colorado Department of Health Care Policy and Financing reached a settlement in the matter last March; the nursing home agreed to pay $23,870 to avoid further litigation but made no admission of wrongdoing. But when Murphy sought to obtain a copy of the official audio-tape record of the hearings, administrative-law judge Don Stimmel, who presided over the hearings, rejected her request.

"You may or may not be entitled to copies of the tapes or a transcript, at your expense, at some future date," Stimmel wrote to Murphy. The judge ticked off three reasons why he couldn't release anything immediately: One, during the hearings, references were made to certain Franklin Park residents by name, and to release such information would violate state and federal privacy and medical-confidentiality laws; two, the tapes might contain "proprietary" information concerning state and federal nursing-home survey procedures; and three, no tapes could be released without first notifying the parties involved so that they could file appropriate objections.

State officials involved in the case have since backed off the second and third arguments but continue to insist that the medical-confidentiality issue prevents them from offering Murphy anything more than a redacted transcript of the hearings, to be prepared at her expense. Murphy points out that such a transcript could cost her thousands of dollars, compared with a few dollars for copying tapes--and she doubts such a measure is necessary.

In the two days she attended the hearings, Murphy says, no Franklin Park residents' names were used. In fact, Stimmel gave explicit instructions against such references. "If he let their names be used on those tapes, then he violated these people's privacy," Murphy says. "He's supposed to make sure that doesn't happen."

Attorney Daniel Lynch, who filed a lawsuit on Murphy's behalf to obtain the tapes, says the state has yet to produce any evidence that the tapes contain confidential information. And even if they do, he notes, "this was a public hearing. If Mary'd had the ability to sit through the whole thing, she could have heard all this stuff. The press could have reported it all. And they're trying to say she's not entitled to the records."

But Deputy Attorney General Maurice Knaizer is convinced, based on his conversations with Stimmel and others involved in the case, that the tapes do contain information that could "lead to the identification" of several nursing-home residents and the disclosure of confidential medical information. Although he hasn't heard the tapes himself--"There is a question as to whether my listening to the tapes would violate confidentiality," he explains--Knaizer speculates that it might be possible to identify a Franklin Park resident "just by the nature of the illness or injury a patient is suffering."

"My feeling is, they just want to cut out all the evidence," Lynch counters. "This is a case where various types of abuse were alleged against various patients, and if they redact everything they say they have to, that will leave us with nothing."

He adds, "If their position on confidentiality is valid, then there are no public records for nursing-home abuse. None."

Last month Denver District Court Judge Richard Spriggs ordered the state to provide edited copies of the tapes to Murphy, at no cost to her. Knaizer is asking Spriggs to reconsider his ruling, which could end up costing the state plenty. "We're going to have to have somebody sit and listen to the tapes for thirty hours or so to determine what has to be excised," Knaizer says. "Then we're going to have to pay a company to do the excision. In theory, it could run us thousands of dollars."

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