Austin health officials say there’s no ‘need’ to make nursing home locations with COVID-19 outbreaks public

Nursing Home Investigations

Editor’s Note:  The video originally included in this article showed scenes from a facility that is not connected with this story.  Those scenes have been removed.

AUSTIN (KXAN) — Austin Public Health officials have asked the state for more resources to target nursing homes with the largest outbreaks of COVID-19, but they will not release the locations of those facilities.

“We have to do better,” Interim Public Health Authority Dr. Mark Escott said, concerning how they tackle the spread in vulnerable long-term care facilities.

He said at least one facility has more than 35 residents and a number of staff that are sick.

So, they’ve requested more staff and resources from the state for the hardest-hit homes, in the form of “strike teams.” However, Dr. Escott said they will not be releasing which long-term care facilities have had outbreaks.

“I know there’s a lot of desire to have lots of details regarding this kind of information,” he said. “It really has to be for a public health need, and not just a desire to have it.”

He said laws regarding patient privacy vary state-to-state, and according to the Texas Department of State Health Services and city attorneys “this is protected information.”

“HIPAA is easy to invoke and is hard to understand, so healthcare providers have often used it as a shield to prevent information from getting out.”

Elizabeth Sepper, UT Law Professor

He said if there was any indication that a facility is not able to notify staff or residents in a “timely manner,” then they may consider public disclosure.

KXAN Investigators have been independently confirming which Central Texas homes have confirmed cases. Texas Congressman Lloyd Doggett told KXAN’s Avery Travis their coverage prompted him and other lawmakers to send a letter to health officials calling on nursing homes to provide more data on COVID-19 patients.

The lawmakers worry “hundreds if not thousands” of cases are going unreported.

“I haven’t received any information from anyone suggesting that people are hiding cases,” Dr. Escott said.

Rep. Doggett said he’s become increasingly concerned with the lack of facility specific information from many Texas jurisdictions, while other states have begun to release this data.

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Nursing Home Cases:
Transparency by State

While state health officials still refuse to release specific numbers and locations of COVID-19 cases in Texas’ nursing homes and assisted living facilities, KXAN is tracking other states that are making that information available to the public. This map is not comprehensive and may not include every state that has disclosed specific nursing homes with COVID-19. KXAN will be updating the map regularly, as new information becomes available.

Dr. Escott said he understands the congressional concerns, but they are taking a different approach.

“If we can effectively reach out to those who are at risk, then I don’t believe there is any need for public disclosure, if that can be achieved by the facility.”

Using HIPAA

A spokesperson for the Texas Health and Human Services Commission told KXAN, “We’re working to provide as much information as possible, in compliance with the laws that govern what we are able to legally provide.”

They explained the Texas Medical Records Privacy Act requires a governmental body that collects protected health information to comply with HIPAA, federal privacy protections on health information.

The spokesperson said HIPAA prevents them from releasing any information that may be used, “even through the process of elimination,” to identify someone, including specific locations of individuals, such as a person’s address, without their consent.

Law professor at the University of Texas Elizabeth Sepper said HIPAA can often be misused.

“HIPAA is easy to invoke and is hard to understand, and health care providers are scared of it, so it has often been used it as a shield to prevent information from getting out,” she said.

She pointed to the fact that many states are disclosing where infections are in nursing homes.

“Letting people there know are a certain number of cases in a nursing home is highly unlikely to run into any of these privacy protections. It’s not about an individual, it’s about a population. Now if you were to disclose addresses of single residences, that would go too far,” Sepper said.

She gave an example of how health information was being used in a de-identified way: Austin has released the number of cases in various zip codes.

“I think who this most affects are residents and their families who need to make decisions with full information. Are they be safe where they are living? Or will they be safer somewhere else?”

Sepper said it’s undeniable that many long-term care facilities will have cases of COVID-19, but she explained that what families don’t want to see in their loved ones’ home is a “spread” of cases.

“You want to see that these facilities are able to contain and to prevent infection,” she said.

Balancing privacy

James G. Hodge, Director at the Network for Public Health Law, said public concerns like that have to be balanced with these residents’ privacy.

“These are such sensitive matters,” he said.

He said state privacy laws can vary, and so can emergency declarations during a health crisis, so that was why we’ve seen such different responses nationwide.

“What they disseminate publicly is up to state health departments — some of which are more super sensitive about the type of info they disclose. What they don’t want to do is reveal the identity of certain patients,” he said. “In other jurisdictions, they are more conscientious, saying ‘Hey, if we can put out aggregate data about non-specific cases, we are going to share that with the community so they can make good judgments.'”

He said even releasing generic data can risk identifying a COVID-19 patient sometimes by the process of elimination.

Still, Hodge emphasized the importance of facilities reporting accurate numbers to local and state health officials.

“It’s about making sure state public health authorities know where the real risks lie, so they can notify EMS and other providers as well,” he said.

Dr. Catherine Troisi, an epidemiologist with the School of Public Health at UTHealth in Houston, said she’s not sure what the general public would gain by knowing which facilities have cases.

However, she said it is important for residents, family and staff members to be informed about a case. Most importantly, it is vital for health departments to be collecting this data, in order to do “contact tracing” and prevent the spread of the virus.

“There’s a difference in what’s being released to health departments and to the general public,” she said. “Health departments are getting the information. However, that’s assuming that residents are being tested. That’s not always happening for a variety of reasons.”

She said since only positive cases are being reported, there is “undoubtedly” going to be under-reported numbers.

Hodge said he expects there to be instances later on where it’s proven cases were under-reported, due to a lack of adequate testing. He also explained that in some cases, there may be an ongoing investigation into how reporting was handled at a facility, and that could delay any release of data.

“More times than not though, quite honestly, it really is about making sure we are not allowing for letting the community to identify specific patients, and more importantly we are not providing false or misleading information about a certain facility.”

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