McHenry County State's Attorney's Office chose representing sheriff over McHenry County Health in disagreement

A recent lawsuit left the McHenry County Department of Health feeling "abandoned" after employees say they felt pressure from the McHenry County State's Attorney's office to disclose COVID-19 patients' names against the guidance of state health professionals.

Throughout a series of preliminary conversations, the McHenry County State's Attorney's office represented both the sheriff's office and the health department as the parties tried to reach an agreement. When it became clear that the health department wouldn't budge on its decision, however, State's Attorney Patrick Kenneally sent a notice to the MCDH indicating that, because of a conflict, his office no longer would be representing the health department. The state's attorney sued the MCDH on behalf of the sheriff's office the following day.

"When there’s a conflict where the state’s attorney’s office can no longer represent both sides, then the state’s attorney picks the side that it thinks is right ..." Kenneally said.

As of Thursday, the MCDH continued to comply with an April 10 court order requiring the health department to share limited private information with law enforcement. McHenry County Judge Michael Chmiel granted a temporary restraining order that mandated the MCDH provide a list of COVID-19 patient names to the McHenry County Emergency Telephone System Board. The information will be shared by dispatchers on a call-by-call basis only, in an attempt to guard first responders against the widespread respiratory disease.

According to the health department, sharing private information won't protect officers. Instead, first responders should assume they're coming in contact with COVID-19 at every call, MCDH Public Health Administrator Melissa Adamson has said. Amid a shortage of PPE, however, the Lake in the Hills, Woodstock, McHenry and Algonquin police departments, along with the McHenry County Sheriff's Office, filed lawsuits and emergency requests for access the otherwise HIPAA-protected information.

The situation unfolded quickly from there, leaving the health department with too little time to hire an attorney and file a proper defense in time for the first court hearing, said attorney Rob Long, who is representing the health department.

"I think [Adamson] felt abandoned," Long said. "It’s a very odd looking thing."

A hearing on the health department's request to dissolve the judge's order was continued to May 18, meaning the MCDH must to comply with the April 10 ruling in the meantime.

The situation began on March 26, when Adamson received an email from McHenry County Assistant State's Attorney Norm Vinton indicating that several police departments had reached out to his office about the disclosure of COVID-19 patient names.

"He stated the [Department of Health and Human Services] guidelines allowed disclosure of [private health information] on COVID-19 infected individuals," Adamson wrote in a personal affidavit. "Before communicating with local agencies, the state's attorney's office wanted to give us a heads up and opportunity to discuss any questions or issues we may have."

After speaking with McHenry County Sheriff Bill Prim on March 30, Adamson met with her staff and decided it would be inappropriate and unbeneficial to release the names of people with confirmed COVID-19 cases. The decision was based, in part, on the state's limited access to testing, the widespread nature of community-transmitted cases, and delays between testing and result confirmation.

The turnaround time for COVID-19 test results is about three days for state labs and 10 days for private labs, Adamson wrote. With an incubation period of about two weeks and a minimum nine-day infection period, it's likely that even those who haven't yet received their results or been tested could in fact be infected.

"We also agreed that we had concerns related to HIPAA’s requirements that such information could only be disclosed under limited circumstances, and that our medical professionals’ oaths and licensures require us to protect patients’ health information," Adamson wrote.

On March 31, however, the MCDH did provide law enforcement with a list of infected people, for use by dispatchers on a case-by-case basis.

"Despite our reservations, but due to the pressure from the sheriff and state’s attorney’s office, we shared a preliminary list of addresses and persons who had tested positive for COVID-19," Adamson wrote.

Prim could not be reached for comment Thursday. In an official statement issued last week on behalf of all the police agencies involved in the lawsuit, the agencies commended Chmiel's decision, claiming it would help limit the spread of COVID-19.

On April 1, the Illinois Department of Public Health sent a memo that prompted the MCDH to go back on its agreement with the sheriff's office. According to the memo, the disclosure of personal information with first responders is allowed under a HIPAA exemption citing threats to public health and safety.

Although local health departments have the option to share that information, it isn't mandatory and is ill-advised by the IDPH. In the event that private patient information is shared, it should be done in the most limited way possible, according to the IDPH.

"As a result of this IDPH memo, we, on April 1, 2020, immediately informed the State’s Attorney that we would no longer provide names of persons, but in the interests of compromise, would continue to provide addresses of such persons with dates where the household should no longer be infectious," Adamson wrote.

The news seemingly came as a surprise to the state's attorney's office, which communicated with Adamson through several phone calls and emails on April 3.

"I know you are swamped, but we thought we had this issue resolved yesterday, and since then IDPH even issued its updated guidance that specifically says disclosure is permissible, but no list and no call back from our message this morning," Vinton wrote. "I just left you another message on your work voicemail. Am I missing something? Let’s get this done, please!"

Adamson reiterated her position in an email April 3 to McHenry County State's Attorney Patrick Kenneally and again during two subsequent conference calls with the sheriff's office and state's attorney's office on April 3 and 6. Cognizant of the shortage of protective gear, Adamson suggested the health department and law enforcement work together.

"We do recognize that there are PPE shortages and we should be working together to address and apply pressure at the state and federal level to get more PPE to our first responders and law enforcement rather than focusing on strategies that are likely going to be limited in their effectiveness," Adamson wrote.

Still, the state's attorney's office "was adamant that we should release this information," she said.

From Kenneally's standpoint, the decision was a "no-brainer," and necessary to protect the county's first responders, he said.

"[First responders] can’t isolate themselves after every interaction with every person out on the street," Kenneally said.

Susan Karras, a nurse who was on the April 6 conference call, wrote in her own affidavit that Adamson wasn't allowed to explain her reasoning to law enforcement, whom Karras said continually interrupted Adamson and accused her of not caring for officers' safety. At one point during the call, Prim allegedly claimed that the sheriff's department had been "removed from the priority list" for personal protective gear. According to Karras, there had been a recent delivery of PPE to all law enforcement in the county.

"I made no statements during this conference call as I believed at the time, and still do, that Patrick Kenneally arranged this call in an attempt to have others pressure Melissa Adamson to do as he wished," Karras wrote.

Reached by phone Thursday, Kenneally denied pressuring the health department, and said he only engaged in conversations that were meant to reach an agreement between the sheriff's office and the MCDH.

"If having a discussion about the strengths and weaknesses of arguments is considered pressure, I don’t know what to say to that," Kenneally said.