Feds: State court order compromises Flint crisis fix

Jonathan Oosting, Michael Gerstein, and Chad Livengood

Lansing — A court order limiting state agency access to Flint health data threatens the federal government’s ability to respond to the city’s water contamination crisis and “puts the public’s health at risk,” according to the U.S. Department of Health and Human Services.

The Obama administration on Friday joined Gov. Rick Snyder’s call for the Michigan Court of Appeals to lift or revise a protective order issued by a Genesee County judge as part of Attorney General Bill Schuette’s criminal probe of the Flint water crisis.

The order restricts the ability of the Michigan departments of health and the environment to access patient information and directs the county health department to instead contact the federal Centers for Disease Control and Prevention for help investigating lead contamination or cases of deadly Legionnaires’ disease.

In doing so, it “threatens the federal government’s ability to respond to the crisis as effectively and quickly as possible,” the U.S. Department of Health and Human Services said in a court brief requesting permission to join the case as an “amicus curiea” even though it is not party to the order.

The department is leading the federal government’s response to the Flint crisis, said the court filing, “and that response is predicated on a close working relationship” between state and federal agencies “and on the exchange of vital public health information.”

Schuette, who has charged multiple state employees with alleged crimes for their role in the Flint crisis, has defended the court order as an appropriate measure during his probe.

The attorney general denied Monday there is any communication problem between the multiple government agencies over new threats to public health in Genesee County after a recent spate of new cases of Legionnaires, a respiratory disease contracted through the spread of Legionella bacteria.

“Conversation is occurring between the CDC and the Genesee County Health Department and after … conversations occur, information is shared and that gets communicated back to the proper agencies,” Schuette said on the radio program “Michigan’s Big Show.”

The Michigan Department of Health and Human Services, acting at Snyder’s behest, took its case to the Court of Appeals in May, asking it to intervene while arguing the protective order prohibits the state from fulfilling its duty to fully participate in Legionella investigations.

The governor’s office was pleased with Friday’s filing by the federal health department, according to spokeswoman Anna Heaton.

“We’re glad to see that they agreed this is harming public health and we hope that it will get resolved sooner rather than later,” she said. “Our concern is just that it keeps DHHS from communicating with locals … we agree with the federal government that it’s having an adverse effect on protecting the public health.”

Schuette’s office is aware of the filing and reviewing it, according to spokeswoman Andrea Bitely.

Schuette on Monday disputed the contention the protective order has stymied communication between state and local officials, saying it is “just not correct.”

“I’m not going to get into all of the apostrophes, dotted i’s and crossed t’s,” Schuette said. “It’s before the Court of Appeals. The judge in Genesee County made the correct decision and I’m confident it will be upheld.”

The legal spat over the protective order between the Snyder administration and Schuette’s Flint team has come as the attorney general’s investigation has reportedly honed in on the Legionnaires’ outbreak in Genesee County, which corresponded with Flint’s use of the Flint River for drinking water.

All told, 12 people died between June 2014 and November 2015 and another 79 people were sickened by the outbreak, which was never publicly disclosed until January.

“Twelve people died of Legionella. That’s something that could not be ignored,” Schuette said. “We’re not going to have anything that could impact or hinder our criminal investigation.”

Genesee County Judge Geoffrey Neithercut first granted a protective order restricting state department access to Flint health data in June. The order was twice amended, most recently in late August.

“In broadly prohibiting state actors from obtaining health information about the crisis, the August 24 protective order may deprive (U.S. Department of Health and Human Services) and members of the Flint community of important information and services that the state would ordinarily provide,” according to the federal brief.

Attorneys said the federal government relies on state agencies and their contracts to provide “critical information” about Flint’s water and Legionella outbreaks, along with public health information.

But “the ambiguous protective order may block or at least significantly delay the federal government’s access to such information and can be expected to chill the state’s and its contractors’ participation in response efforts, placing the public’s health at risk,” they wrote.