Texas bill to make disease cases in nursing homes public advances in House

Investigations

AUSTIN (KXAN) – A bill that would make public the number of cases of diseases found in long-term care facilities, such as a nursing home, got a House Human Services Committee hearing Tuesday and appears to be moving closer to passage. Nobody testified against the legislation.

State Rep. Mayes Middleton, R-Wallisville, authored the legislation—HB 3306. Two similar bills have been filed by state senators: SB 930 submitted by Sen. Judith Zaffirini, D-Laredo, and SB 882 by Lois Kolkhorst, R-Brenham, who chairs the Senate Health and Human Services Committee. Zaffirni’s bill was passed by the Senate and sent to the House on April 1.

“There have been countless news stories dealing with the struggle that families went through in the pandemic and trying to find out if an outbreak of COVID had occurred in a facility that housed their family member,” Middleton said at the hearing Tuesday. “That tragedy reveals a gap in our transparency laws for these types of facilities.”

Middleton’s legislation would make public the facility name, location and number of residents diagnosed with a communicable disease at nursing, assisted living and continuing care facilities in the state. Personal health information and individuals’ names would not be released under the law.

The filing of these disease transparency bills follows a period in 2020, early in the pandemic, when the Texas Health and Human Service Commission and local health departments refused to release facility-level information that would show the number of cases of COVID-19 at long-term care facilities. Members of the public, including residents’ family members and journalists, were unable to identify which facilities had outbreaks.

For months, KXAN had to contact individual facilities in Central Texas and ask about COVID-19 cases and deaths. Many facilities provided basic information, but they were not required to release it. Texas has over 1,200 nursing homes.

KXAN Investigative Reporter Avery Travis covered the virus’ spread through long-term care facilities and provided neutral testimony on Middleton’s bill Tuesday. She said viewers contacted her with a mix of confusion and frustration when they believed the virus was spreading in their loved one’s nursing home but couldn’t get answers from administrators.

“Pretty much every day since last March, we have received hundreds of phone calls, tearful phone calls, emails, anonymous tips, and, at the heart of it all, questions about how many cases were spreading inside these specific facilities,” Travis said. “Some of the families were hearing one thing from facility leadership and then hearing something completely different from their loved ones inside, who were terrified, or from staff.”

KXAN Investigator Avery Travis provided neutral testimony on HB 3306 at a House Human Services Committee hearing April 6. Travis’ testimony focused on the struggle journalists and families faced early in the pandemic when trying to get any information on COVID-19 outbreaks in long-term care facilities.

Texas Attorney General Ken Paxton’s office ruled last July that the facility-level disease information from the state was not protected by health privacy law. After that, HHSC began releasing datasets showing virus cases and deaths at all nursing, assisted living and state-run facilities. The federal Centers for Medicare & Medicaid Services releases its own weekly COVID-19 case and facility preparedness data.

Wesley Lewis, an attorney speaking in favor of and on behalf of the Freedom of Information Foundation of Texas, said Paxton’s ruling did make clear that certain information should be public, but there have been issues with his ruling’s application for local health authorities. Middleton’s legislation would help with “ensuring clarity” on whether or not there are statutory exemptions for those authorities.

The bill would enshrine in law that disclosing disease cases would not “run afoul of HIPAA, or the Texas Medical Privacy Act, and really ensuring that state and local authorities are in compliance with this sort of regime that would say that this sort of information is open to the public,” Wesley said.

The Health Insurance Portability and Accountability Act, commonly called HIPPA, is a federal law that makes a wide range of personal health information private.

As of noon Tuesday, HB 3306 was left pending in the House Human Services Committee. KXAN will update this report when the bill moves further through the Legislature.

Cases falling in nursing homes

Long-term care facilities, particularly nursing homes, have been some of the most hard-hit communities by COVID-19. There have been more than 80,000 resident cases in nursing homes, and nearly 9,000 residents have died of the virus, according to HHSC.

There were nearly 7,000 active COVID-19 cases in nursing facilities, a record high in Texas, on Jan. 4. The active case count began plummeting about a week after that high, and the latest data shows just over 700 active cases on March 22, according to HHSC data.

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