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Judge hears testimony over temporary abortion ban during COVID crisis

Eddie Burkhalter

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A federal judge on Monday heard testimony during the first hearing following the judge’s temporary restraining order last week, which temporarily barred Alabama from prohibiting abortions during the novel coronavirus outbreak.

U.S. District Judge Myron Thompson heard testimony from Alabama State Health Officer Dr. Scott Harris and Dr. Yashika Robinson, the named plaintiff in the case who operates an OBGYN office in Huntsville and conducts abortions at the Alabama Women’s Center, one of three abortion clinics in the state. 

The American Civil Liberties Union and the ACLU of Alabama filed the suit on behalf of Robinson, which argues that Alabama is restricting access to abortions under the guise of protecting the public from COVID-19. 

The state is defending Harris’s March 27 and April 3 public health orders, which prohibit elective medical procedures except those necessary to treat an “emergency medical condition” or to “avoid serious harm from an underlying condition.” 

Attorneys with the attorney general’s office argue the order’s purpose wasn’t to target abortion clinics but to prevent the spread of the virus and to save scarce personal protective equipment as health care workers fight the COVID-19 outbreak. 

Harris told the court during the teleconference hearing Monday just that, that his order banned elective procedures to limit the public’s exposure to the virus and to help preserve the state’s limited supply of PPE. 

Alabama Assistant Attorney General Jim Davis asked Harris whether the Alabama Department of Public Health defined what is and isn’t an elective procedure, to which Harris said, “We did not specify. We just said all procedures” and the department instead “left that to the discretion of the provider.” 

Harris told the court that it’s up to health care providers to determine if their patient meets one of the two of the exceptions spelled out in his April 30 order. 

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“Specifically,  can a woman who gets an abortion experience complications that require a followup?” Davis asked Harris, who said yes. 

Harris said one of the goals of his order was to prevent stress on the state’s health care system in the event an elective procedure requires emergency care. 

“We didn’t try to think of every possible procedure or every possible scenario, but I think, generally speaking, procedures do consume PPE,” Harris said. 

Alexa Kolbi-Molinas, an attorney with ACLU, asked Harris about an ADPH directive regarding the COVID-19 outbreak that state health care providers are to seek guidance from organizations including the American College of Obstetricians and Gynecologists.

“Were you aware that ACOG and other organizations have issued a joint statement stating that they do not support COVID-19 responses that cancel or delay abortion procedures?” Kolbi-Molinas asked Harris. 

“No. I’m not aware of that,” Harris said. 

Harris agreed during questioning that he cannot say how long his order barring elective procedures might last, and said that China’s ability to slow the spread of the virus was the result of strict travel restrictions that would be difficult to implement in Alabama.  

Kolbi-Molinas asked Harris about Alabama’s infant and maternal mortality crisis, which preceded the COVID-19 outbreak and noted that Alabama women die from childbirth complications at more than double the rate of women nationally, and rank third-highest in the nation in maternal death rates. 

Kolbi-Molinas pointed out through questioning that ADPH licenses abortion clinics and has the authority to take action against a clinic that violates an emergency order, and that prosecutors could also take action against them if ADPH declined to do so. 

Kolbi-Molinas asked Harris about the inclusion of gun stores as “essential” businesses in his April order, which allows the stores to remain open. 

“There are more than three gun stores in Alabama, aren’t there?” she asked. 

“I think you’re probably right about that,” Harris said. 

Kolbi-Molinas asked whether Harris knew if gun stores in the state are screening employees or customers for fevers, and Harris said that he did not. 

She asked if he was aware that the FBI conducted background searches for more than 100,000 gun purchases in Alabama during March, in which a customer must come into the store in person. Harris said he was unaware of that figure. 

“Would you say the decision to designate gun stores as essential retailers was driven by public health considerations?” Kolbi-Molinas asked. 

“I think the whole list of non-essential versus essential businesses was something that we’re trying to do as quickly as possible, and we really concentrated mostly on what we thought were close-contact professions,” Harris said. “Clearly, there are actually, literally hundreds of exceptions here, and we may not have gotten them all correct, but I think we were trying to do them as quickly as possible.” 

Dr. Yashika Robinson told the court that she has canceled some appointments during the COVID-19 crisis that she considers elective, including hysterectomies and tubal ligations. 

“They weren’t considered emergencies,” Robinson said. 

Asked why she hasn’t canceled abortions, Robinson said “they are time-sensitive. They cannot be delayed without causing harm.” 

Alabama law bans abortions beyond 21 weeks and six days, Robinson said. 

Robinson said complications from abortions are “less than one percent” and abortions are about ten times safer for women than carrying a pregnancy to term. 

Approximately 20 percent of pregnant women will miscarry, and about half of those will require medical attention, Robinson said. 

Robinson said women decide to have an abortion for a variety of reasons, from “a pregnancy that is just not developing correctly” and some “already have children” and decide to have an abortion so they can better care for the children they have.

“Some women, they just know it’s not the time for them to start a family, or increase their family size,” Robinson said. Most of the women she provides abortions for are low-income and many have no insurance. 

A delay in getting an abortion increases health risks for the woman, she said.  

“Every week matters for these patients,” Robinson said. 

Some women try and self-induce an abortion if they don’t have access to care, Robinson said, and can injure themselves badly doing so, requiring emergency room care. 

“Those patients usually require multiple days of hospitalization,” Robinson said, which uses more PPE than would an abortion in a clinic. 

The state filed an additional clarification with the court Sunday regarding how the state would determine which procedures are covered by one of the two exceptions.

“Defendants would clarify that while reasonable medical judgment of all healthcare providers will be treated with respect and deference, a health care provider’s assertion that a procedure meets one of the exceptions is not conclusive proof that the procedure meets one of the exceptions in the March 27 order or the current April 3 public health order,” the state’s filing reads.

Robinson told the court that she fears her medical judgment wouldn’t be recognized by the state were she to decide to conduct an abortion.

Assistant Attorney General Brad Chynoweth asked Robinson about screening procedures she’s adopted for patients at her clinic, which include her request for a patient who might present with COVID-19 symptoms to postpone the procedure. 

“You’re taking into account risk for others. Not just the patient herself, correct?” Chynoweth asked. 

“Absolutely,” Robinson said. 

Chynoweth asked if physical examinations are done before a medication abortion, and Robinson said they are and that appropriate PPE is used during the exams. 

Chynoweth noted during questioning that during surgical procedures 6 feet of distance between a doctor and the patient isn’t possible and PPE must be used. 

Chynoweth asked if she has any N95 masks at the clinic, and Robinson said “we have a few” but that they’ve not been used as she’s not seen any patients who presented with symptoms of COVID-19. 

Asked if any abortion could be postponed, Robinson said some abortions could be postponed, but any delay of weeks or even days could mean a higher likelihood of health complications for women. 

Judge Myron Thompson at the close of testimony asked attorneys on both sides about who or what agency would handle a criminal complaint resulting in the order, and was told the state Attorney General’s office has the authority to do so. 

Thompson asked for proposed opinions from both sides to be filed with the court by 8 a.m. Wednesday.

The Fifth Circuit Court of Appeals in Texas last week ruled that the state’s temporary ban on abortions amid the COVID-19 crisis could continue.

Judges in Ohio on Monday ruled that most abortions could continue following a lower court’s ruling that upheld the state’s temporary ban.

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Three more prison workers, another inmate test positive for COVID-19

Eddie Burkhalter

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Three more prison workers have tested positive for COVID-19, becoming the sixth prison worker to self-report positive test results in two days. 

Additionally, a man serving at the St. Clair Correctional Facility also tested positive for the virus, the Alabama Department of Corrections (ADOC) announced in a Friday press release. 

Three workers at the Julia Tutwiler Prison for Women in Wetumpka all self-reported positive test results and are self-quarantined, according to the release. That makes 12 workers with confirmed coronavirus cases at that facility, and 61 cases among staff across the state’s prisons, although 16 have been cleared to return to work. 

The man serving at St. Clair had been treated at a local hospital earlier this month for a preexisting medical condition and tested negative for COVID-19 at the time, according to ADOC. He returned to a local hospital a short time later and tested positive for COVID-19, and remains at the hospital for treatment, according to the release.

There were four confirmed cases of COVID-19 among inmates at the St. Clair prison as of Thursday, according to ADOC, and one inmate there, the terminally-ill 66-year-old Dave Thomas, died at a local hospital less than 24 hours after testing positive for the virus. One worker at the facility had tested positive for COVID-19 but has since been cleared to return to work. 

A small living area in St. Clair prison’s infirmary, where the man was living, has been placed on level two quarantine, meaning incarcerated people there will be restricted to their living areas for meals and all other activities, according to ADOC. 

The entire infirmary has been placed on level one quarantine, so inmates inside will be monitored for symptoms and have temperatures checked twice daily. 

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There have been 12 confirmed COVID-19 cases among inmates, and three remained active as of Friday, according to ADOC. All of the inmates who’ve tested positive for the virus had preexisting medical conditions and were tested for COVID-19 at hospitals. 

Testing of inmates in general remains very low, however. Less than one percent of the state’s inmate population has been tested, or 156 of approximately 22,000. 

Prison reform advocates have expressed concern that without broader testing, the extent of the virus’s spread inside the overcrowded prisons won’t be known, and more people will become infected due to the spread from asymptomatic people. 

The state’s prisons were at 170 percent capacity in January, the last month in which ADOC has made monthly statistical reports publicly available.

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Tuscaloosa mayor: “We have entered into a danger zone” as hospitalizations rise

Chip Brownlee

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While Montgomery County and the River Region of Central Alabama remain the top area of concern for state officials responding to COVID-19, Tuscaloosa County is showing signs of a worsening outbreak as cases and hospitalizations spike.

“We have entered into a danger zone,” said Tuscaloosa Mayor Walt Maddox in an interview. “And if we continue to see trends of doubling hospitalizations over the next week, then we probably enter into an area where Montgomery is currently at. The good news is that we’re handling this. The bad news will be if the trend continues to rise.”

Over the past thirteen days, the number of COVID-19 cases in Tuscaloosa County has more than doubled from 345 on May 17 to 699 as of Friday evening. During the early months of the pandemic, Tuscaloosa saw relatively stable case increases, a trend that broke about two weeks ago. According to The New York Times’s analysis of COVID-19 data, Tuscaloosa has one of the fastest-growing outbreaks in the country.

Testing has also increased in Tuscaloosa County, but the percent of tests that are positive in the county over the last seven days, on average, is about 10 percent, up from as low as 2 percent in early May.

Many of the new cases in Tuscaloosa have been connected through contact tracing to institutional settings, Maddox said, including nursing homes, the metro jail and the state’s Mary Starke Harper Geriatric Psychiatric Center, where at least two patients have died.

“Those are the main drivers in what we’re seeing,” Maddox said.

But contact tracing has also found that, in at least one case, the virus entered a facility through an asymptomatic carrier, showing that community transmission of the virus is ongoing, in many cases unnoticed, and is affecting more vulnerable populations like those in long-term care facilities and jails.

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“That to me is kind of getting into what the public needs to know,” Maddox said. “We have to continue to apply common sense. That means wearing a mask when going out in public, practicing social distancing and assuming that everyone that you come in contact with is a potential carrier.”

State Health Officer Scott Harris echoed that plea Thursday.

“Some of those are outbreaks,” Harris said of counties with rising cases. “And yet again, those are still attributable to community spread. The people in the nursing home didn’t go out in the community and catch it. Someone brought it into them, presumably, and so there has to be transmission going on in the community for that to happen. We need to find a way to get people to take seriously these social-distancing guidelines.”

But hospitalizations — a more precise, though delayed, indicator — show an even more worrisome trend.

At DCH Health, the main hospital system in Tuscaloosa County, the number of COVID-19 positive inpatients more than doubled in a week’s time from 36 on May 22 to 83 as of Friday afternoon.

“In Tuscaloosa, we took early action, and it’s given us the ability to deal with the higher number of coronavirus cases and hospitalizations,” Maddox said. “At this point, we are at the ability to manage what we’re facing.”

As of Friday, 74 of DCH Health’s ICUs are in use — including both COVID and non-COVID patients — which would exceed the hospital system’s typical ICU bed capacity had it not expanded its capacity.

Hospital officials, including those in Tuscaloosa and Montgomery, have been clear to say that they are still able to treat additional patients, though the hospitals are under strain.

Twenty-two of the patients in ICUs are COVID-19 patients, according to the hospital system. Twelve of the patients who have tested positive for COVID-19 are on ventilators. But there remain 52 others who are hospitalized pending tests for COVID-19. Eleven of those are in ICUs, the hospital reported Friday afternoon.

In total, DCH Health System has 90 ICU beds available, after adding ICU bed capacity by retrofitting hospital rooms. Normally there are only 72 ICU rooms between DCH’s main hospital in Tuscaloosa and its smaller hospital in neighboring Northport. Eighteen hospital rooms were adapted for ICU use to increase capacity.

The number of COVID-positive patients in ICUs has also doubled from May 22. There are also more patients pending test results in ICUs in Tuscaloosa than on May 22.

Like many hospital systems in Alabama, DCH also serves surrounding counties without adequate health care infrastructure. Neighboring Greene and Hale counties — part of Alabama’s Black Belt region — have among the highest per capita case rates in Alabama at 1,147 cases per 100,000 people and 1,051 cases per 100,000 people, respectively.

Though the situation in Tuscaloosa County is not as immediately dire as in Montgomery, Maddox said he is concerned that Tuscaloosa could soon be in a situation similar to Montgomery and the River Region, where hospitals temporarily ran out of formal ICU beds.

As of Friday, Montgomery Mayor Steven Reed said about 4 percent of area hospitals’ ICU beds were available.

“I want to make sure I emphasize to you, while we do have a shortage of beds and we are reaching a dangerous capacity load in ICUs, there is room to treat people who are sick,” Reed said.

Meanwhile, case counts in Montgomery continue to rise.

“Unfortunately our numbers have not plateaued, but are significantly increasing,” Reed said, adding that “more testing does not mean that we should see patients in worse conditions with fewer ICU beds.”

Maddox urged all residents to abide by social-distancing recommendations and wear masks.

“The stage that we’re entering into now,” Maddox said, “it’s going to be more on the individual than ever before. By doing the smart things, they can protect themselves, they can protect their family members, they can protect their community, they can save jobs, and they can help us get out of this sooner rather than later. And that would be my message to everyone. Let’s continue to do the smart things. If we do that, we will reclaim our lives.”

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Less than 1 percent of Alabama inmates have been tested for COVID-19

Eddie Burkhalter

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As the number of prison workers in Alabama who’ve tested positive for COVID-19 continues to rise, the number of cases among inmates in the state’s dangerously overcrowded prisons has remained flat, and that likely comes down to testing. 

Inmates in Alabama are only tested if they are exhibiting symptoms and a physician recommends the test. On the contrary, prison workers seek out tests on their own and are asked to voluntarily self-report positive results. 

As of Thursday evening, 58 prison workers self-reported positive COVID-19 results, while just 11 inmates have had confirmed cases, two of which remained active, according to the Alabama Department of Corrections.

Of the state’s approximately 22,000 inmates, just 155 had been tested for the virus as of Wednesday. That’s less than 1 percent of Alabama’s prison population.

ADOC says the department is following the CDC’s COVID-19 guidelines for correctional facilities, which currently do not state that inmates who aren’t exhibiting symptoms should be tested, but many other states have begun blanket or universal testing in prisons, and they’re finding that many who showed no symptoms had the virus and are spreading it to others. 

Advocates for the incarcerated say those serving behind the fences cannot keep themselves safe from coronavirus, that social-distancing in overcrowded facilities isn’t possible and sanitation is subpar. 

As the number of confirmed cases in Alabama continue to rise, those advocates worry that without broad testing, outbreaks inside the prisons become much more likely, and the virus won’t stay inside the prison, as workers can bring it with them back into their communities. 

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Alabama has the fourth-lowest COVID-19 testing rate among inmate populations in the U.S., according to the Covid Prison Project, a group of public health scientists who track the virus in U.S. prisons. (Statistics for 17 states were incomplete.)

Alabama had tested 5.66 inmates per 1,000 as of Thursday. 

Alabama also had the sixth-lowest percentage of confirmed cases among inmates, according to the Covid Prison Project, with just .41 confirmed cases per 1,000 inmates. 

“Currently, inmates are tested for COVID-19 only with the order of a physician, who makes a medically informed decision to do so if certain CDC criteria are met. This is in-line with CDC guidelines for correctional institutions,” ADOC spokeswoman Samantha Rose wrote to APR in a message Friday. 

“At this time, the ADOC is not testing asymptomatic inmates with the exception of those moved to level-two quarantine,” Rose said. “However, all inmates referred to a community physician, health center, or local hospital for non-emergent appointments or medical procedures will be tested for COVID-19 upon medical provider or facility request, or in accordance with their testing requirements/protocols.” 

Regarding ADOC’s future plans for universal testing, Rose said that the department continues to monitor closely COVID-19’s evolving impact on the correctional system, state and country “and gather additional data around which informed and strategic operational decisions can be made.” 

“As we have since the onset of this pandemic, the Department’s intent is to keep the public apprised, without compromising security, of our ongoing and evolving response to COVID-19 in our facilities,” Rose continued. 

“It is important to note the measure of success relative to COVID-19 in our facilities is the same as it in the free world, and that measure is not about zero positive tests. It’s about slowing the impact of the virus and maintaining critical medical services, which we believe we are doing and will continue to do,” Rose said in the message. “It’s about doing everything we can to protect those who may be have been exposed, and preventing them from potentially infecting others while contagious. Finally, it’s about caring for those who do get sick and helping them to fully recover wherever possible. This is what we are doing, and this is what we remain committed to in addition to the important mission of the Department.” 

While the CDC does not currently recommend testing inmates who are asymptomatic, several states are doing so, and the results have been a massive jump in the number of confirmed cases. 

“When you look at other states that have begun to test more, or have even authorized mass testing, their cases immediately skyrocketed,” said Dillon Nettles, policy analyst for the ACLU of Alabama, speaking to APR on Friday. 

In Ohio, 78 percent of all inmates at the Marion Correctional Institute tested positive for coronavirus after prison officials there decided to test the entire prison population. 

West Virginia Gov. Jim Justice on Wednesday ordered the Division of Corrections and Rehabilitation to test every inmate in the state for COVID-19, according to The Herald-Dispatch

“Most all of the other states have had a really bad go of it with their prisons,” Justice said during his daily press briefing, according to the newspaper. “All of these people are in an area that’s confined and, naturally, they interact in a closer area so, therefore, they’re more exposed. I hope and pray that what we’re doing is the right thing and, at the end of the day, it will protect people because they deserve to be protected.”

Public health officials in California in late April broadened the scope of who could be tested to include prisoners, who are more at risk of the virus due to their confined living spaces and lack of sanitation. 

While the CDC does not currently recommend testing asymptomatic inmates, a recent CDC report does say that screening alone isn’t enough, and that perhaps testing may be an important strategy in slowing the spread of the virus inside prisons. 

The CDC’s report on COVID-19 in correctional facilities released May 6 found that only 69 percent of jurisdictions reported data to the CDC, but among them, 53 percent only reported confirmed cases among staff, and said there were no confirmed COVID-19 cases among inmates. 

Information on the percentage of inmates and staff tested was not available, according to the CDC report, so it’s unclear whether inmates were being tested in the 53 percent of jurisdictions that reported no cases among the incarcerated. 

The CDC report noted that although symptom screening is important, it’s not enough to stop an outbreak in prisons. 

An investigation of a COVID-19 outbreak in a skilled nursing facility found that about half of cases identified through facility-wide testing were among asymptomatic people, who likely contributed to the virus’s spread inside the facility, the report states. 

“These data indicate that symptom screening alone is inadequate to promptly identify and isolate infected persons in congregate settings such as correctional and detention facilities,” the CDC’s report reads. 

“Testing might become an important strategy to include when it is more widely available and when facilities have developed plans for how the results can be used to inform operational strategies to reduce transmission risk,” the report continues. 

Nettles with the ACLU of Alabama said the organization rejects ADOC’s statements that the department is doing everything within its power to maintain the health and safety of people in state facilities. 

“That wasn’t true before COVID-19 and it’s certainly not true now,” Nettles said. “The only true way to put the best interests of the people who are incarcerated forward is to first, ensure that there is mass testing for those who are inside the facilities, for each and every individual.” 

The CDC recommends additional strategies, including reducing prison populations by releasing some inmates. 

“Some jurisdictions have implemented decompression strategies to reduce crowding, such as reducing or eliminating bail and releasing persons to home confinement or community supervision,” the report states. 

Although some municipal judges in Alabama have begun releasing a portion of local jail inmate populations to reduce the number of incarcerated people during the coronavirus outbreak, none of those measures have been taken up by officials who oversee Alabama’s prisons to specifically address the pandemic. 

Nettles said ADOC and the Alabama Bureau of Pardons and Paroles should be working to release as many inmates as possible from the overcrowded prisons. 

Instead, the Alabama Bureau of Pardons and Paroles last week increased the prison population by revoking probation of more inmates than the bureau released on parole, Nettles said. 

Nettles said there’s also a concern that large outbreaks in prisons could tax an already overburdened hospital system, and noted a shortage of intensive care beds in Montgomery, a city that recently had been sending COVID-19 patients to hospitals in Birmingham due to the scarcity of ICU beds. 

Shon Hopwood, an associate professor at Georgetown University Law Center, said during an online press briefing Thursday that many prisons are located in small rural communities, which poses a risk to everyone living nearby. 

“It’s not just a concern with the people in prison. This is eventually going to get out and overwhelm these small communities where our prisons are located, and our health system is ill-equipped to be able to handle that sort of large scale outbreak,” Hopwood said. 

“Everything that is recommended to all of us on the outside in terms of social distancing, in terms of hygiene and sanitation protection is almost impossible on the inside,” said Marc Howard, a professor and director of the Prisons and Justice Initiative at Georgetown University speaking at that same press briefing Thursday. “And so when you have prisons that are overcrowded the way American prisons are, to a degree that’s unprecedented across the world and throughout history, you cannot separate people so that they’re not in contact with each other.” 

Howard described prisons and jails as tinderboxes for the spread of COVID-19, and said  while there’s been some work as of late in some areas to prevent its spread inside the fences “unfortunately, it’s come much too late, because COVID-19 is really rampant throughout most prisons and jails.” 

“Ultimately, I think it’s a tragic situation that you have people who are essentially helpless, and we need as a society on the outside to really care about that, and to feel the pain and to learn from it,” Howard said. “So that this doesn’t happen in the future, and hopefully so that some deep decarceral measures can be taken now.” 

Howard said studies have shown that almost half of Americans have a relative in their family who is, or was incarcerated. 

“But because of the stigma they don’t talk about it. They keep it hidden, and this is actually much closer to home than we realize,” Howard said. “And what I think we need to think about, especially when hearing about these horrible stories about infection running rampant throughout prisons and jails, is that these might be our brothers and sisters, our cousins, our mothers and fathers. Our children.”

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Three more prison workers test positive for COVID-19, testing of inmates remains low

Eddie Burkhalter

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Two workers at the Bullock Correctional Facility and one employee at the Kilby Correctional Facility have tested positive for COVID-19, the Alabama Department of Corrections said Thursday evening.

The latest confirmed cases among staff bring the total of COVID-19 cases among prison workers to 58. Twelve of those workers have since recovered, the Alabama Department of Corrections said in a press release Thursday. 

ADOC is investigating to determine whether inmates or staff had “direct, prolonged exposure to these staff members,” according to the release. Anyone exposed to the infected staff members will be advised to contact their health care providers and self-quarantine for two weeks, according to the release. 

The latest case at Bullock prison makes 5 workers there who’ve tested positive for coronavirus, and the worker at Kilby prison also became the fifth employee at that facility with a confirmed case of the virus.

There have been confirmed COVID-19 cases in 18 of the state’s 27 facilities, with the Ventress Correctional Facility in Barbour County with the most infected workers, with 12 confirmed cases among staff.

As of noon Thursday, there were no additional confirmed COVID-19 cases among inmates, according to ADOC. Of the 11 confirmed cases among inmates, two remain active, according to the department. 

The extent of the spread of the virus among inmates is less clear, however, due to a lack of testing. Just 155 inmates of approximately 22,000 had been tested as of Tuesday, according to the department. Test results for six inmates were still pending. 

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An ADOC spokeswoman was working to respond to APR’s questions sent Wednesday asking whether the department had plans to broaden testing among inmates to include asymptomatic people, but APR had not received responses as of Thursday evening. 

ADOC this week completed installation of infrared camera systems at major facilities that can detect if a person attempting to enter or exit the facility is running a temperature greater than 100 degrees, according to the release Thursday. 

“This added layer of screening increases accuracy of readings while reducing the frequency with which individuals must be in close proximity at points of entry/exit,” the release states.

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